Armouth-Levy v. New York City

The defendant’s motion to dismiss the complaint based on the inordinate and prejudicial delay in prosecuting the action should have been denied. CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action. Here, the Supreme Court did not possess the power to dismiss this pre-note of issue action on the ground of a general lack of prosecution since the plaintiff had not received a 90-day demand pursuant to CPLR 3216 (b) requiring the plaintiff to serve and file a note of issue (see Chase v Scavuzzo, 87 NY2d 228 , 233 [1995]; Airmont Homes v Town of Ramapo, 69 NY2d 901 , 902 [1987]; Cohn v Borchard Affiliations, 25 NY2d 237 , 246 [1969]; Arroyo v Board of Educ. of City of N.Y., 110 AD3d 17 [2013]; Docteur v Interfaith Med. Ctr., 90 AD3d 814 , 815 [2011]; Maspeth Fed. Sav. & Loan Assn, v Simon-Erdan, 67 AD3d 750 , 751 [2009]; Dominique v Flushing Hosp. Med. Ctr., 22 AD3d 789 [2005]). Accordingly, the defendant’s motion to dismiss the complaint for failure to prosecute should have been denied. Dillon, J.P, Balkin, Chambers and Austin, JJ., concur.