On February 9, 2022, the Second Department issued a decision in Bank of Am., N.A. v. Ali, 2022 NY Slip Op. 00838, vacating a dismissal for failure to prosecute because of the lack of proper notice, explaining:
A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met. Here, the Supreme Court was without authority to issue a 90-day notice since issue was not joined in the action.
Moreover, an action cannot be dismissed pursuant to CPLR 3216 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.
Here, the conditional order of dismissal, which, in effect, served as a 90-day notice pursuant to CPLR 3216, was defective in that 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, the record demonstrates that no such motion was ever made, nor was there entry of an order of dismissal.
(Internal quotations and citations omitted).
Deutsche Bank Natl. Trust Co. v. Beckford, 2022 NY Slip Op. 01143, decided by the Second Department two weeks later, on February 23, 2022, and Central Mtge. Co. v. Ango, 2022 NY Slip Op. 01286, decided by the Second Department a month later, on March 2, 2022, made essentially the same holding.