| Passet v Menorah Nursing Home, Inc. |
| 2009 NY Slip Op 09009 [68 AD3d 735] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Ann Passet, Respondent, v Menorah Nursing Home, Inc.,Doing Business as Menorah Nursing Home & Hospital for the Aged, et al.,Appellants. |
—[*1] Halperin & Halperin, P.C., New York, N.Y. (Steven T. Halperin and Andrew Poznanski ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Knipel, J.), dated September 8, 2008, which denied theirmotion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.
Ordered that the order is affirmed, 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 defendants' notice demanding that the plaintiff serve and file a note of issue cannotbe deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiff that she was"to resume prosecution of the action and to serve and file a note of issue within ninety days afterreceipt of such demand" (CPLR 3216 [b] [3] [emphasis added]; cf. Johnson vMinskoff & Sons, 287 AD2d 233, 238 [2001]). Since no proper notice was received by theplaintiff prior to the defendants' motion, the Supreme Court was not authorized to dismiss thecomplaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926; Harrison vGood Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering v Stella, 243 AD2d at624). Skelos, J.P., Covello, Santucci, Chambers and Austin, JJ., concur.