| Troche v Lieberman |
| 2008 NY Slip Op 09783 [57 AD3d 655] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mVeronica Troche, Appellant, v Gregory M. Lieberman,Respondent, et al., Defendants. |
—[*1] Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesenof counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, as limitedby her brief, (1) from so much of an order of the Supreme Court, Nassau County (Mahon, J.), datedFebruary 14, 2007, as denied that branch of her motion which was to vacate the dismissal of the actionpursuant to CPLR 3216 and to restore the action to the trial calendar, and (2) from so much of anorder of the same court dated July 31, 2007, as, upon renewal, adhered to the original determination.
Ordered that the appeal from so much of the order dated February 14, 2007, as denied thatbranch of the plaintiff's motion which was to vacate the dismissal of the action pursuant to CPLR 3216and to restore the action to the trial calendar is dismissed, without costs or disbursements, as thatportion of the order was superseded by so much of the order dated July 31, 2007, as was made uponrenewal; and it is further,
Ordered that the order dated July 31, 2007, is reversed insofar as appealed from, on the law, uponrenewal, so much of the order dated February 14, 2007, as denied that branch of the plaintiff's motionwhich was to vacate the dismissal of the action pursuant to CPLR 3216 and to restore the action to thetrial calendar is vacated, and that branch of the plaintiff's motion is granted; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiff,payable by the defendant Gregory M. Lieberman.
CPLR 3216 permits a court to dismiss an action for neglect to prosecute only after the court or thedefendant has served the plaintiff with a written notice demanding that the plaintiff file a note of issuewithin 90 days after receipt of the demand, and advising that the failure to comply with the demand willserve as a basis for a motion to dismiss the action (see CPLR 3216 [b] [3]; Harrison v Good Samaritan Hosp. Med.Ctr., 43 AD3d 996 [2007]). "Since CPLR 3216 is a legislative creation and not part of acourt's inherent power, the failure to serve a written notice that conforms to the provisions of CPLR3216 is the failure of a condition precedent to dismissal of the action" (Harrison v Good SamaritanHosp. Med. Ctr., 43 AD3d at 997 [citations omitted]; see Chase v Scavuzzo, 87 NY2d228, 233 [1995]; Airmont Homes v Town of Ramapo, 69 NY2d 901, 902 [1987]).
On August 2, 2005, the Supreme Court issued a certification order which directed the plaintiff tofile a note of issue "within 90 days of the date of this Order," and warned that "[t]he failure to file maybe the basis of a motion pursuant to CPLR § 3216." Although such an order can constitute avalid 90-day demand pursuant to CPLR 3216 (see Anjum v Karagoz, 48 AD3d 605 [2008]; Bowman v Kusnick, 35 AD3d 643[2006]), here, the order was not signed by counsel for the parties, who were not present in court on thedate it was issued, and there is no evidence that it was ever served on the plaintiff, or that the plaintiffreceived it prior to the court's sua sponte dismissal of the action. Under these circumstances, thestatutory preconditions to dismissal pursuant to CPLR 3216 were not satisfied (see Ovchinnikov v Joyce Owners Corp., 43AD3d 1124, 1126 [2007]; Basile vChhabra, 24 AD3d 149 [2005]; Jacobs v Cirnigliaro, 259 AD2d 669, 670 [1999];cf. Felix v County of Nassau, 52 AD3d653 [2008]). Accordingly, the court should not have dismissed the action based upon the plaintiff'sfailure to comply with the certification order.
In light of our determination, we need not address the parties' remaining contentions. Mastro, J.P.,Rivera, Fisher and Eng, JJ., concur.