On October 9, 2024, the Second Department issued a decision in Bank of N.Y. Mellon v. Buxbaum, 2024 NY Slip Op. 04943, holding that a conditional order of dismissal was defective because it did not give state that the plaintiff’s failure to comply with the notice would serve as a basis for a motion by the court to dismiss the action for failure to prosecute, explaining:
CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with. Pursuant to CPLR 3216(b), an action cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed.
While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216, the conditional order here was defective in that it did not state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion by the court to dismiss the action for failure to prosecute. Additionally, it appears that the action was administratively dismissed, without a motion and without the entry of a court order.
Accordingly, the action was not properly dismissed pursuant to CPLR 3216, and the Supreme Court properly granted the plaintiff’s motion to vacate the conditional order of dismissal and to restore the action to the active calendar.
(Internal quotations and citations omitted).