On December 15, 2021, the Second Department issued a decision in Onewest Bank, FSB v. N&R Family Trust, 2021 NY Slip Op. 07008, holding that a court’s dismissal for failure to prosecute was faulty when there was not proper notice, explaining:
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 for unreasonably neglecting to proceed. Here, the November 22, 2016 order was not effective to serve as a 90-day notice pursuant to CPLR 3216, as it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the Supreme Court, on its own motion, to dismiss the action for failure to prosecute. Further, it is evident from the record that the action was ministerially dismissed without a motion or notice to the parties, and there was no order of the court dismissing the action. Under these circumstances, the action was properly restored to the active calendar without considering whether the plaintiff had a reasonable excuse for its delay in complying with the November 22, 2016 order.
(Internal quotations and citations omitted).