OneWest Bank, FSB v. Segal

Summary

The Appellate Division, Second Department, reversed an order denying OneWest Bank's motion to restore a mortgage foreclosure action to the active calendar and extend the time to file a note of issue. The court held that the June 26, 2018 order was not a valid 90-day demand under CPLR 3216 because it provided insufficient time and lacked the required warning language. It further held that the action had been ministerially dismissed without a motion, notice, or formal dismissal order, requiring restoration without consideration of the plaintiff's excuse for delay.

Holdings

1. The June 26, 2018 order was not a valid ninety-day demand under CPLR 3216 because it gave the plaintiff less than ninety days to comply and did not contain the required warning that noncompliance could serve as the basis for a dismissal motion.
2. The action was improperly marked disposed because the record showed a ministerial dismissal without a motion or notice to the parties and without entry of a formal order directing dismissal.
3. The action should have been restored to the active calendar without consideration of whether the plaintiff had a reasonable excuse for its delay in complying with the June 26, 2018 order.

Questions Presented

1. Whether the June 26, 2018 order constituted a valid ninety-day demand under CPLR 3216.
2. Whether the action could properly be dismissed or marked disposed ministerially for failure to file a note of issue without a motion, notice, or formal order of dismissal.
3. Whether the action should be restored to the active calendar without requiring the plaintiff to establish a reasonable excuse for its delay.

Disposition

reversed