| Harrison v Good Samaritan Hosp. Med. Ctr. |
| 2007 NY Slip Op 06833 [43 AD3d 996] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Donna Harrison, Respondent, v Good Samaritan HospitalMedical Center, Appellant. |
—[*1] Meltzer, Fishman, Madigan & Campbell, New York, N.Y. (Edward J. Madigan of counsel),for respondent.
In an action to recover damages for medical malpractice and lack of informed consent, thedefendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), datedSeptember 25, 2006, which granted the plaintiff's motion to vacate a judgment of the same courtentered July 26, 2006, upon an order of the same court dated June 12, 2006, granting thedefendant's unopposed motion to dismiss the action pursuant to CPLR 3216 for failure toprosecute, and restored the action to the calendar.
Ordered that the order is affirmed, with costs.
It is well settled that CPLR 3216 permits a court to dismiss an action for want of prosecutiononly after the court or the defendant has served the plaintiff with a written notice demanding thatthe plaintiff resume prosecution of the action and file a note of issue within 90 days after receiptof the demand, and also stating that the failure to comply with the demand will serve as the basisfor a motion to dismiss the action. Since CPLR 3216 is a legislative creation and not part of acourt'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 awritten notice that conforms to the provisions of CPLR 3216 is the failure of a conditionprecedent to dismissal of the action (see Airmont Homes v Town of Ramapo, supra at902; Ameropan Realty Corp. v Rangeley Lakes Corp., [*2]222 AD2d 631, 632 [1995]).
The defendant's demand dated November 11, 2004 for the resumption of the prosecution ofthe action cannot be deemed a notice pursuant to CPLR 3216 because it did not conform to theprovisions of that statute. Since a proper notice was not served upon the plaintiff prior to thedefendant's motion, the Supreme Court was not authorized to dismiss the action pursuant toCPLR 3216 (see Kesar v Green RidgeEnters. Corp., 30 AD3d 471 [2006]; Murray v Smith Corp., 296 AD2d 445, 447[2002]; Ameropan Realty Corp. v Rangeley Lakes Corp., supra at 632). Accordingly, theSupreme Court properly granted the plaintiff's motion to vacate the judgment dismissing theaction. Schmidt, J.P., Krausman, Goldstein, Covello and Angiolillo, JJ., concur.