| Itskov v Menorah Home & Hosp. for the Aged & Infirm |
| 2009 NY Slip Op 08999 [68 AD3d 723] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Naum Itskov et al., Respondents, v Menorah Home andHospital for the Aged and Infirm, Appellant. |
—[*1] William Pager, Brooklyn, N.Y., for respondents.
In an action to recover damages for medical malpractice, etc., the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.),dated August 8, 2008, as denied its motion pursuant to CPLR 3216 to dismiss the complaint forfailure to prosecute.
Ordered that the order is affirmed insofar as appealed from, with costs.
CPLR 3216 permits a court to dismiss an action for want of prosecution only after the courtor the defendant has served the plaintiff with a written notice demanding that the plaintiff resumeprosecution of the action and serve and file a note of issue within 90 days after receipt of thedemand, and also stating that the failure to comply with the demand will serve as the basis for amotion to dismiss the action (see Rose vAziz, 60 AD3d 925, 926 [2009]). Since CPLR 3216 is a legislative creation and not partof a court's inherent power (see 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 thefailure of a condition precedent to dismissal of the action (see Airmont Homes v Town ofRamapo, 69 NY2d 901, 902 [1987]; Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med.Ctr., 43 AD3d 996, 997 [2007]; Schuering v Stella, 243 AD2d 623, 624 [1997]).
Here, the defendant's notice dated November 5, 2007 demanding that the plaintiffs serve andfile a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notifythe plaintiffs that they were "to resume prosecution of the action and to serve and file a note ofissue within ninety days after receipt of such demand" (CPLR 3216 [b] [3] [emphasisadded]; cf. Johnson v Minskoff & Sons, 287 AD2d 233, 238 [2001]). Since no propernotice was received by the plaintiffs prior to the defendant's motion, the Supreme Court was notauthorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3dat 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering vStella, 243 AD2d at 624). Skelos, J.P., Covello, Santucci, Chambers and Austin, JJ., concur.