3216

JP Morgan Chase Bank v Faracco, 2018 NY Slip Op 08286 [2d Dept. 2018]

As the plaintiff correctly contends, the ministerial dismissal of the action was improper. Although the Supreme Court appears to have relied upon CPLR 3216 (b) as authority for its actions, the order dated April 11, 2013, failed to constitute a valid 90-day demand under that statute, since it did not recite that noncompliance with its terms “will serve as a basis for a motion . . . for dismissal . . . for unreasonably neglecting to proceed” (CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Bastelli, 164 AD3d 748; Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020; US Bank N.A. v Saraceno, 147 AD3d 1005). Moreover, the court never directed the parties to show cause as to why the action should not be dismissed, and did not enter a formal order of dismissal on notice to the parties as required by CPLR 3216(a) (see Cadichon v Facelle, 18 NY3d 230; US Bank N.A. v Saraceno, 147 AD3d at 1006). Accordingly, the ministerial dismissal, made without notice and without benefit of further judicial review, was erroneous (see Cadichon v Facelle, 18 NY3d at 236). In any event, dismissal was improper because the letter sent by the plaintiff’s counsel to the court, which provided a good faith explanation for the delay in moving for a judgment of foreclosure and sale, adequately and timely complied with the terms of the order dated April 11, 2013, and the plaintiff’s conduct did not prejudice the defendant and did not support any inference of an intent to abandon the action (see US Bank N.A. v Saraceno, 147 AD3d at 1006).