JPMorgan Chase Bank, Nat'l Ass'n v. Eze, 2018–03642

• Court: New York Supreme Court Appellate Division
• Citation: 132 N.Y.S.3d 862 (Mem),188 A.D.3d 1173
• Docket Number: Index No. 7271/11,2018–03642
• Parties: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, etc., respondent, v. Chidi EZE, etc., appellant.
• Decision Date: 25 November 2020

188 A.D.3d 1173
132 N.Y.S.3d 862 (Mem)

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, etc., respondent,
v.
Chidi EZE, etc., appellant.

2018–03642
Index No. 7271/11

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

Submitted - June 29, 2020
November 25, 2020

Alaba Rufai, Jamaica, NY, for appellant.

Fein, Such & Crane (D.J. & J.A. Cirando, PLLC, Syracuse, N.Y. [John A. Cirando, Bradley E. Keem, and Rebecca L. Konst], of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Chidi Eze appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated January 9, 2018. The order, insofar as appealed from, denied that branch of that defendant's cross motion which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him for failure to prosecute.

ORDERED that the order is affirmed insofar as appealed from, with costs.

CPLR 3216 permits a court to dismiss a complaint for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action (see CPLR 3216[b][3] ; Wasif v. Khan, 82 A.D.3d 1084, 1084, 919 N.Y.S.2d 203 ; Passet v. Menorah Nursing Home Inc., 68 A.D.3d 735, 735–736, 889 N.Y.S.2d 659 ). Since CPLR 3216 is a legislative creation and not part of a court's inherent power (see Airmont Homes v. Town of Ramapo, 69 N.Y.2d 901, 902, 516 N.Y.S.2d 193, 508 N.E.2d 927 ; Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 248, 303 N.Y.S.2d 633, 250 N.E.2d 690 ), the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the complaint (see Airmont Homes v. Town of Ramapo, 69 N.Y.2d at 902, 516 N.Y.S.2d 193, 508 N.E.2d 927 ;

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