On August 16, 2023, the Second Department issued a decision in Deutsche Bank Natl. Trust Co. v. Campbell, 2023 NY Slip Op. 04303, holding that the trial court erred in dismissing an action for failure to prosecute sua sponte, explaining:
The Supreme Court should have granted that branch of the plaintiff’s motion which was, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order. A motion pursuant to CPLR 2221(a) is not subject to any specific time limitation. Where, as here, an order directing dismissal of a complaint is not appealable as of right because it did not decide a motion made on notice, it is procedurally proper for the aggrieved party to move pursuant to CPLR 2221(a) to vacate that order.
CPLR 3215(c) provides that if the plaintiff fails to take proceedings for the entry of judgment within one year after a default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c). Nor is a plaintiff required to specifically seek the entry of a judgment within a year. As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c).
Here, the plaintiff initiated proceedings for the entry of a judgment by moving for an order of reference in December 2008, which was within one year of the defendant’s default in the action. Since the plaintiff did not abandon the action, the Supreme Court erred in, sua sponte, directing dismissal of the complaint pursuant to CPLR 3215(c). Moreover, under the circumstances of this case, vacatur of the dismissal order was not precluded on the ground that the plaintiff commenced the 2015 action after the court directed dismissal of the complaint in this action.
Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order.
(Internal quotations and citations omitted).