US Bank v. Vardales
Justice Thomas Whelan
US Bank commenced this mortgage foreclosure action. Vardales defaulted in timely answering. The bank moved for an order fixing the defaults of all defendants, and appointment of a referee to compute. Vardales moved for dismissal arguing the bank failed to resume prosecution of the action within 90 days of receipt of his CPLR 3216 demand. The court noted strict compliance with the statutory conditions precedent to a dismissal under §3216 was required. As courts were prohibited from dismissing an action based on neglect to prosecute unless the §3216 statutory preconditions to dismissal were met, the failure to have served an answer rendered service of a 90 days demand a nullity. The court found the record devoid of any evidence an answer was served by Vardales, thus his failure to satisfy the joinder of issue condition precedent imposed upon a dismissal under §3216 warranted denial of the motion. Also, a party in default may not move for affirmative relief without an order relieving such defendant from his default in place at the time the affirmative relief was demanded. Thus, as there was no vacatur of Vardales' default in answering at the time of interposing this motion, dismissal was improper, and denied.