Wells Fargo Bank, N.A. v. Pinargote

• Decision Date: 31 May 2017
• Court: New York Supreme Court — Appellate Division
• Parties: WELLS FARGO BANK, N.A., doing business as America's Servicing Company, appellant, v. Melida M. PINARGOTE, respondent, et al., defendants.

150 A.D.3d 1311

52 N.Y.S.3d 907 (Mem)

WELLS FARGO BANK, N.A., doing business as America's Servicing Company, appellant,

v.Melida M. PINARGOTE, respondent, et al., defendants.

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

May 31, 2017.

Hogan Lovells U.S. LLP, New York, NY (Christian Fletcher, David Dunn, and Chava Brandriss of counsel), for appellant.

Steven Zalewski & Associates, P.C., Kew Gardens, NY (Mark S. Anderson of counsel), for respondent.

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated March 19, 2015, as denied those branches of its motion which were, in effect, to vacate an order of the same court dated September 24, 2013, which conditionally dismissed the action pursuant to CPLR 3216, and to restore the action to the calendar.

ORDERED that the order dated March 19, 2015, is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were, in effect, to vacate the order dated September 24, 2013, and to restore the action to the calendar are granted.

The plaintiff commenced this action to foreclose a mortgage. After the defendants failed to answer, the plaintiff obtained an order of reference dated December 17, 2007. In an order dated September 24, 2013, the Supreme Court conditionally dismissed the action for want of prosecution pursuant to CPLR 3216. The action was thereafter administratively dismissed on July 10, 2014. Subsequently, the plaintiff moved, inter alia, in effect, to vacate the conditional order of dismissal and to restore the action to the calendar. In an order dated March 19, 2015, the court denied the motion. We reverse insofar as appealed from.

CPLR 3216 permits dismissal of a party's pleading where certain conditions precedent have been met. Here, issue was never joined and, thus, at least one such condition precedent was lacking (see CPLR 3216[b][1] ). As a consequence, the Supreme Court was without authority to dismiss the action pursuant to CPLR 3216 (see Downey Sav. & Loan Assn., F.A. v. Aribisala, 147 A.D.3d 911, 47 N.Y.S.3d 413 ; U.S. Bank N.A. v. Bassett, 137 A.D.3d 1109, 1110, 28 N.Y.S.3d 109 ).

Accordingly, those branches of the plaintiff's motion which were, in effect, to vacate the conditional order of dismissal dated September 24, 2013, and to restore the action to the calendar must be granted.

The parties' remaining contentions either...