| Docteur v Interfaith Med. Ctr. |
| 2011 NY Slip Op 09260 [90 AD3d 814] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Lauretta Docteur, as Administratrix of the Estate of MarleneDocteur, Deceased, Appellant, v Interfaith Medical Center,Respondent. |
—[*1] Carlucci & Giardina, LLP, New York, N.Y. (Tamara Sorokanich and Jerry Giardina ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, theplaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), datedNovember 18, 2010, which granted the defendant's motion to dismiss the complaint for failure toprosecute.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion todismiss the complaint for failure to prosecute is denied.
Contrary to the defendant's contention, dismissal of the complaint based on the plaintiff'sinordinate and prejudicial delay in prosecuting the action was unavailable in this case. CPLR3216 permits a court to dismiss an action for want of prosecution only after the court or thedefendant 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. Since CPLR 3216 is a legislative creation and not part of a court'sinherent 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 for failure to prosecute(see Chase v Scavuzzo, 87 NY2d 228, 232 [1995]; Airmont Homes v Town ofRamapo, 69 NY2d 901, 902 [1987]; Cohn v Borchard Affiliations, 25 NY2d 237,246 [1969]; Wasif v Khan, 82AD3d 1084, 1084-1085 [2011]; Maspeth Fed. Sav. & Loan Assn. v Simon-Erdan, 67 AD3d 750,751 [2009]; Dominique v FlushingHosp. Med. Ctr., 22 AD3d 789 [2005]). Inasmuch as the defendant did not serve a90-day demand on the plaintiff in this matter, the defendant's motion to dismiss the complaint forfailure to prosecute should have been denied.
Furthermore, the Supreme Court erred in dismissing the complaint pursuant to CPLR 3126,since there has been no clear showing of a willful and contumacious pattern of noncompliancewith disclosure requests or court-ordered discovery on the part of the plaintiff (see e.g. Polsky v Tuckman, 85 AD3d750 [2011]; Comprehensive Care ofN.Y., P.C. v Manuel A. Romero, P.C., 56 AD3d 510 [2008]; cf. Kihl v Pfeffer,94 NY2d 118 [1999]; Umar vOhrnberger, 72 AD3d 1066 [2010]; Suazo-Alvarez v [*2]Nordlaw, LLC, 48AD3d 670 [2008]). Mastro, A.P.J., Florio, Lott and Cohen, JJ., concur.