HSBC Bank USA, Nat'l Ass'n v. Garnes

186 A.D.3d 1620

129 N.Y.S.3d 819 (Mem)

HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent,

v.Eric GARNES, etc., appellant, et al., defendants.

2018–13569

Index No. 23235/11

Supreme Court, Appellate Division, Second Department, New York.

Submitted—May 11, 2020

September 30, 2020

Balisok & Kaufman, PLLC, Brooklyn, N.Y. (Jesse L. Kaufman of counsel), for appellant.

McGlinchey Stafford, New York, N.Y. (Victor L. Matthews of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Eric Garnes appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated September 24, 2018. The order granted the plaintiff's motion, inter alia, to vacate a conditional order of dismissal of the same court dated March 2, 2017, and to restore the action to the active calendar.

ORDERED that the order dated September 24, 2018, is affirmed, with costs.

The plaintiff commenced this action to foreclose a mortgage in October 2011. On March 2, 2017, the Supreme Court issued a conditional order of dismissal, dismissing the action pursuant to CPLR 3216 and directing the County Clerk to cancel the notice of pendency "unless [the] plaintiff files a note of issue or otherwise proceeds by motion for entry of judgment within 90 days from the date hereof." The plaintiff failed to comply with the order, and the action was administratively dismissed thereafter without further notice to the parties.

In April 2018, the plaintiff moved, inter alia, to vacate the conditional order of dismissal and to restore the action to the active calendar. In an order dated September 24, 2018, the Supreme Court granted the plaintiff's motion. The defendant Eric Garnes appeals.

" CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with" ( Deutsche Bank Natl. Trust Co. v. Bastelli, 164 A.D.3d 748, 749, 83 N.Y.S.3d 155 [internal quotation marks omitted]; see CPLR 3216 ). Pursuant to CPLR 3216(b), an action cannot be dismissed pursuant to CPLR 3216(a) "unless a written demand is served upon ‘the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the ‘default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed’ " ( Cadichon v. Facelle, 18 N.Y.3d 230, 235, 938 N.Y.S.2d 232, 961 N.E.2d 623, quoting CPLR 3216[b][3] ; see Nationwide Capital Group, Inc. v. Weiss, 170 A.D.3d 870, 93 N.Y.S.3d 884 ).

While a conditional order of dismissal may have "the same effect as a valid 90–day notice pursuant to CPLR 3216" ( U.S. Bank N.A. v. Spence, 175 A.D.3d 1346, 1348, 105 N.Y.S.3d 882 [internal quotation marks omitted] ), the conditional order here was defective in that it did not state that the plaintiff's failure to comply with the notice "will serve as a basis for a motion" by the court to dismiss the action for failure to prosecute ( CPLR...