U.S. Bank N.A. v. Sanchez

Summary

The Appellate Division, Second Department, held that the Supreme Court lacked authority to dismiss a mortgage foreclosure action for failure to prosecute under CPLR 3216 because issue had not been joined. It reversed the order denying the plaintiff's motion to vacate the dismissal and restore the action, and dismissed as academic the appeal from a later order denying renewal.

Holdings

1. A court may not dismiss an action for neglect to prosecute under CPLR 3216 unless the statute's preconditions are satisfied, including that issue has been joined. Because no defendant had served an answer, issue was never joined, and the Supreme Court lacked power to dismiss the complaint under CPLR 3216.
2. The Appellate Division could reach the plaintiff's argument for the first time on appeal because it presented a question of law appearing on the face of the record and could not have been avoided if brought to the Supreme Court's attention.

Questions Presented

1. Whether the Supreme Court had authority to dismiss the foreclosure action for neglect to prosecute under CPLR 3216 when issue had never been joined.
2. Whether the plaintiff's unpreserved challenge to the statutory preconditions for dismissal could be considered on appeal.
3. Whether the appeal from the order denying renewal was academic after reversal of the order denying vacatur and restoration.

Disposition

reversed