| Rose v Aziz |
| 2009 NY Slip Op 02346 [60 AD3d 925] |
| March 24, 2009 |
| Appellate Division, Second Department |
| Ronald Rose et al., Respondents, v Hassan Ibn Aziz et al.,Defendants, and Long Island College Hospital, Appellant. |
—[*1] Napoli Bern Ripka, LLP, New York, N.Y. (Denise A. Rubin of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice and lack of informedconsent, etc., the defendant Long Island College Hospital appeals, as limited by its brief, from somuch of an order of the Supreme Court, Kings County (Steinhardt, J.), dated February 14, 2008,as denied its motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted againstit for failure to prosecute.
Ordered that the order is affirmed insofar as appealed from, 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 serve and file a note of issue within 90 daysafter receipt of the demand, and also stating that the failure to comply with the demand will serveas the basis for a motion to dismiss the action. Since CPLR 3216 is a legislative creation and notpart 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 toserve a written 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, 69 NY2dat 902; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996 [2007]; Schueringv Stella, 243 AD2d 623 [1997]; Ameropan Realty Corp. v Rangeley Lakes Corp.,222 AD2d 631, 632 [1995]).[*2]
The appellant's notice, dated July 31, 2007, demandingthat the plaintiffs serve and file a note of issue cannot be deemed a notice pursuant to CPLR3216 because it failed to notify the plaintiffs that they were "to resume prosecution of the actionand to serve and file a note of issue within ninety days after receipt of such demand" (CPLR3216 [b] [3]). Since a proper notice was not received by the plaintiffs prior to the appellant'smotion, the Supreme Court was not authorized to dismiss the complaint insofar as assertedagainst the appellant pursuant to CPLR 3216 (see Harrison v Good Samaritan Hosp. Med.Ctr., 43 AD3d 996 [2007]; Schuering v Stella, 243 AD2d 623 [1997]; AmeropanRealty Corp. v Rangeley Lakes Corp., 222 AD2d at 632). Rivera, J.P., Dillon, Miller, Balkinand Leventhal, JJ., concur.