Avanza Group, LLC v. Bugz Innovations, LLC

Opinion

Avanza Group, LLC v Bugz Innovations, LLC

2026 NY Slip Op 05068

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Avanza Group, LLC, appellant,

v

Bugz Innovations, LLC, etc., et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2025-02825, (Index No. 601245/23)

Colleen D. Duffy, J.P.

Linda Christopher

Barry E. Warhit

Elena Goldberg Velazquez, JJ.

Berkovitch & Bouskila PLLC, Pomona, NY (Ariel Bouskila of counsel), for appellant.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered February 4, 2025. The order, sua sponte, directed dismissal of the action with prejudice.

ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

In January 2023, the plaintiff commenced this action against the defendants, inter alia, to recover damages for breach of contract. In an order entered October 4, 2024 (hereinafter the October 2024 order), the Supreme Court granted the plaintiff's motion to strike the defendants' answer and for leave to enter a default judgment based on the defendants' failure to cooperate with discovery. The October 2024 order directed the plaintiff to file a note of issue 10 days prior to the inquest and noted that "[t]he failure to file a Note of Issue as directed or appear as directed may be deemed an abandonment of the claims giving rise to the Inquest."

The plaintiff did not file the note of issue by the date of the inquest. In an order entered February 4, 2025, the Supreme Court, pursuant to the October 2024 order, sua sponte, directed dismissal of the action with prejudice. The plaintiff appeals.

"A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met" (Bank of N.Y. v Harper, 176 AD3d 907, 908 [internal quotation marks omitted]; see Sadowski v Harmon, 171 AD3d 1116, 1117). 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'" (Cadichon v Facelle, 18 NY3d 230, 235 [emphasis omitted], quoting CPLR 3216[b][3]; see OneWest Bank, FSB v Segal, 221 AD3d 1020, 1022). The statute also requires "where, as here, [*2]a written demand to resume prosecution of the action is made by the court, 'the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation'" (Sadowski v Harmon, 171 AD3d at 1117, quoting CPLR 3216[b][3]; see Rhodehouse v CVS Pharm., Inc., 151 AD3d 771, 772-773).

Here, the Supreme Court was without power to, sua sponte, direct dismissal of the action pursuant to CPLR 3216, as the statutory prerequisites for dismissal under that statute were not met (see Bank of N.Y. v Harper, 176 AD3d at 908; Rhodehouse v CVS Pharm., Inc., 151 AD3d at 773).

Moreover, "[a] court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" (Onewest Bank, FSB v Fernandez, 112 AD3d 681, 682 [internal quotation marks omitted]). Here, there were no extraordinary circumstances warranting dismissal of the action (see Moreau v Cayton, 203 AD3d 818, 818; Henning v 17 Murray Rest Corp., 137 AD3d 1216, 1217).

Accordingly, the Supreme Court should not have, sua sponte, directed dismissal of the action with prejudice.

In light of our determination, we need not reach the plaintiff's remaining contentions.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court