On May 27, 2026, the Second Department issued a decision in OneWest Bank, FSB v. Johnson, 2026 NY Slip Op. 03315, holding that an action cannot be dismissed for failure to prosecute before issue has been joined, explaining:
The plaintiff correctly contends that the Supreme Court was without authority to dismiss the complaint in this action pursuant to CPLR 3216, since issue had not been joined. Moreover, it is evident from the record that this action was ministerially dismissed without a motion or notice to the plaintiff, and there was no order of the court dismissing the action.
(Internal citations omitted).