Opteum Fin. Servs., LLC v. Einersen

Summary

The Appellate Division, Second Department, reversed an order denying Opteum Financial Services, LLC's unopposed motion to vacate a sua sponte dismissal of its mortgage foreclosure action for failure to prosecute and to restore the action to the active calendar. The court held that the Supreme Court lacked power to dismiss under CPLR 3216 because the record did not show that the required 90-day notice had been properly served. The court also denied the defendants' motion to dismiss the appeal as academic.

Holdings

1. A court may not dismiss an action under CPLR 3216 unless the statutory conditions precedent are satisfied, including proper service of a written 90-day demand containing the required warning regarding dismissal for failure to proceed. Because the record did not establish proper service, the Supreme Court lacked power to dismiss the action.
2. The plaintiff's unopposed motion to vacate the unauthorized dismissal order and restore the action to the active calendar should have been granted.
3. The defendants' motion to dismiss the appeal as academic was denied.

Questions Presented

1. Whether the Supreme Court had authority to dismiss the foreclosure action for failure to prosecute under CPLR 3216 when the record contained no evidence that the required 90-day written demand was properly served.
2. Whether the plaintiff was entitled to vacatur of the dismissal order and restoration of the action to the active calendar.
3. Whether the defendants' motion to dismiss the appeal as academic should be granted.

Disposition

reversed