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Wasif v. Khan

82 A.D.3d 1084 Court N.Y. App. Div. Decision date 2011-03-22 English

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p. 1084
Aneela Wasif et al., Appellants, v Nawaz Khan, Respondent.
[919 NYS2d 203]

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. Since CPLR 3216 is a

p. 1085
legislative creation and not part of a court’s inherent power (see Airmont Homes v Town of Ramapo, 69 NY2d 901 , 902 [1987]; 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 at 902 ; Rose v Aziz, 60 AD3d 925 , 926 [2009]; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996 , 997 [2007]; Schuering v Stella, 243 AD2d 623 , 624 [1997]).

The defendant’s purported 90-day demand dated September 1, 2009, served upon the plaintiffs, was defective on its face, as it failed to demand that the plaintiffs serve and file a note of issue (see CPLR 3216 [b]; Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d 1021 , 1024 [2009]). Furthermore, a so-ordered stipulation filed October 29, 2009, which extended the plaintiffs’ time to file a note of issue to January 22, 2010, could not be deemed a 90-day demand since it failed to advise the plaintiffs that the failure to comply therewith would serve as the basis for a motion to dismiss the action (see Heifetz v Godoy, 38 AD3d 605 [2007]; O’Connell v City Wide Auto Leasing, 6 AD3d 682 , 683 [2004]; Akpinar v John Hancock Mut. Life Ins. Co., 302 AD2d 337 [2003]). Since the plaintiffs were not served with a proper 90-day demand, the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint should have been denied (see Rose v Aziz, 60 AD3d at 926 ; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997 ). Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.

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