

Downey Sav. & Loan Assn., F.A. v Aribisala (2017 NY Slip Op 01183)





Downey Sav. & Loan Assn., F.A. v Aribisala


2017 NY Slip Op 01183


Decided on February 15, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 15, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
SHERI S. ROMAN
HECTOR D. LASALLE, JJ.


2015-11463
 (Index No. 38448/07)

[*1]Downey Savings and Loan Association, F.A., appellant,
vDenis Aribisala, et al., defendants, Leslie Windsor, et al., respondents.


Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Juan Paolo F. Dizon of counsel), for respondent Leslie Windsor.
RAS Boriskin, LLC, Westbury, NY (Jason W. Creech of counsel), for appellant.

DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated May 28, 2015, which denied that branch of its motion which was to vacate an order of the same court dated July 23, 2013, conditionally dismissing the action pursuant to CPLR 3216, and, in effect, denied, as academic, that branch of its motion which was for a judgment of foreclosure and sale.
ORDERED that the order dated May 28, 2015, is reversed, on the law, with costs, that branch of the plaintiff's motion which was to vacate the order dated July 23, 2013, is granted, and the matter is remitted to the Supreme Court, Kings County, for a determination on the merits of that branch of the plaintiff's motion which was for a judgment of foreclosure and sale.
The plaintiff commenced this action to foreclose a mortgage. After the defendants failed to answer, the plaintiff obtained an order of reference dated September 9, 2009. In an order dated July 23, 2013, the Supreme Court, on its own initiative, conditionally dismissed the action for want of prosecution pursuant to CPLR 3216. The plaintiff's counsel later claimed that counsel's office "was not notified of any disposition or dismissal conference much less the . . . order dated July 23, 2013." Subsequently, the plaintiff moved to vacate the order dated July 23, 2013, and for a judgment of foreclosure and sale. In an order dated May 28, 2015, the court denied that branch of the plaintiff's motion which was to vacate the order dated July 23, 2013, and, in effect, denied, as academic, that branch of its motion which was for a judgment of foreclosure and sale. The plaintiff appeals.
The Supreme Court should have granted that branch of the plaintiff's motion which was to vacate the order dated July 23, 2013, conditionally dismissing the action pursuant to CPLR 3216. CPLR 3216 permits dismissal of a party's pleading where certain conditions precedent have been complied with. Here, however, where issue was not joined, at least one precondition set forth in CPLR 3216 was not met, and the court was therefore without power to dismiss the action pursuant to CPLR 3216 (see U.S. Bank N.A. v Bassett, 137 AD3d 1109, 1110; CPLR 3216[b][1]; see also Chase v Scavuzzo, 87 NY2d 228, 233; Maspeth Fed. Sav. & Loan Assn. v Simon-Erdan, 67 AD3d 750, 751).
Since the Supreme Court did not consider the merits of that branch of the plaintiff's motion which was for a judgment of foreclosure and sale, the matter must be remitted to the Supreme Court, Kings County, for a determination on the merits of that branch of the motion (see Willis v City of New York, 113 AD3d 674, 675).
BALKIN, J.P., LEVENTHAL, ROMAN and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


