On June 7, 2023, the Second Department issued a decision in Washington Mut. Bank v. Brottman, 2023 NY Slip Op. 03041, holding that a court is authorized, but never required, to dismiss an action for failure to prosecute, explaining:
The Supreme Court providently exercised its discretion in denying the defendants’ cross-motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them, on the ground that WaMu failed to prosecute the action. CPLR 3216(a) provides: “Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party’s pleading on terms.” But CPLR 3216 is an extremely forgiving statute which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed. Moreover, a court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met. One of those conditions precedent is that the court send the plaintiff a demand to resume prosecution at least 90 days prior to dismissing the case.
(Internal quotations and citations omitted).