On November 2, 2022, the Second Department issued a decision in U.S. Bank N.A. v. Sanchez, 2022 NY Slip Op. 06155, holding that an action may not be dismissed for failure to prosecute if issue has not been joined, explaining:
A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met. As relevant to this appeal, CPLR 3216(b)(1) provides that no dismissal shall be made under this statute unless issue has been joined.
Here, contrary to the Supreme Court’s statement in the order dated September 24, 2013, issue was never joined in the action, as none of the defendants had submitted an answer to the complaint. Since at least one precondition set forth in CPLR 3216 was not met, the court was without power to direct dismissal of the complaint pursuant to that statute. Although the plaintiff raises for the first time on appeal the argument that the CPLR 3216 statutory preconditions to dismissal were not met, we reach the argument because it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the court.
(Internal quotations and citations omitted).