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Itskov v. Menorah Home & Hospital for the Aged & Infirm

68 A.D.3d 723 Court N.Y. App. Div. Decision date 2009-12-01 English

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p. 723
Naum Itskov et al., Respondents, v Menorah Home and Hospital for the Aged and Infirm, Appellant.
[890 NYS2d 105]

CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and 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 (see Rose v Aziz, 60 AD3d 925 , 926 [2009]). Since CPLR 3216 is a legislative creation and not part of a court’s inherent power (see Cohn v Borchard Affiliations, 25 NY2d 237 , 248 [1969]), the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the action (see Airmont Homes v Town of Ramapo, 69 NY2d 901 , 902 [1987]; Rose v Aziz, 60 AD3d at 926 ; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996 , 997 [2007]; Schuering v Stella, 243 AD2d 623 , 624 [1997]).

Here, the defendant’s notice dated November 5, 2007 demand

p. 724
ing that the plaintiffs serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiffs that they were “to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand” (CPLR 3216 [b] [3] [emphasis added]; cf. Johnson v Minskoff & Sons, 287 AD2d 233 , 238 [2001]). Since no proper notice was received by the plaintiffs prior to the defendant’s motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926 ; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997 ; Schuering v Stella, 243 AD2d at 624 ). Skelos, J.P., Covello, Santucci, Chambers and Austin, JJ., concur.

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