| Shcherbina v Queens Nassau Nursing Home, Inc. |
| 2009 NY Slip Op 07615 [66 AD3d 869] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Shilya Shcherbina, Respondent, v Queens Nassau NursingHome, Inc., Appellant. |
—[*1] Shestack & Young, LLP, New York, N.Y. (Shibu J. Jacob of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from so much ofan order of the Supreme Court, Kings County (Patterson, J.), dated October 28, 2008, as grantedthat branch of the plaintiff's motion which was, in effect, to vacate the dismissal of the actionpursuant to CPLR 3216 and to restore the action to the active calendar.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exerciseof discretion, with costs, and that branch of the plaintiff's motion which was, in effect, to vacatethe dismissal of the action pursuant to CPLR 3216 and to restore the action to the active calendaris denied.
In a compliance conference order dated April 1, 2003, the Supreme Court directed theplaintiff to file a note of issue on or before July 1, 2003, and warned that the action would bedismissed if the plaintiff failed to comply. Counsel for the plaintiff signed the order. This orderhad the same effect as a 90-day notice pursuant to CPLR 3216 (see Felix v County of Nassau, 52AD3d 653 [2008]; Anjum vKaragoz, 48 AD3d 605 [2008]; Hoffman v Kessler, 28 AD3d 718 [2006]). The plaintiff failed tocomply with this order either by filing a timely note of issue or by moving to extend the periodfor doing so, and the action was properly dismissed pursuant to CPLR 3216 (see Felix v County of Nassau, 52AD3d 653, 653-654 [2008]; Anjumv Karagoz, 48 AD3d 605 [2008]). Since the plaintiff waited three years to move tovacate the dismissal of the action, the motion was untimely and should have been denied (see Vinikour v Jamaica Hosp., 2 AD3d518, 519 [2003]). Rivera, J.P., Miller, Balkin, Leventhal and Hall, JJ., concur.