| Tolmasova v Umarova |
| 2011 NY Slip Op 09626 [90 AD3d 1028] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Larisa Tolmasova, Respondent, v Ludimila Umarova et al.,Defendants, and Roman V. Popik, Appellant. |
—[*1] Alexander Shiryak, Kew Gardens, N.Y., for respondent.
In an action, inter alia, to recover damages for legal malpractice, the defendant Roman V.Popik appeals, as limited by his brief, from so much of an order of the Supreme Court, KingsCounty (F. Rivera, J.), dated June 3, 2011, as granted the plaintiff's motion to extend the time toserve and file a note of issue and, in effect, denied his cross application to dismiss the actionpursuant to CPLR 3216.
Ordered that on the Court's own motion, the notice of appeal from so much of the order as, ineffect, denied the appellant's cross application to dismiss the action, is treated as an applicationfor leave to appeal, and leave to appeal from that portion of the order is granted (seeCPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
While the failure to comply with a court order directing the filing of a note of issue can, inthe proper circumstances, provide the basis for the dismissal of a complaint pursuant to CPLR3216, courts are prohibited from dismissing an action based on neglect to prosecute unless thestatutory preconditions to dismissal set forth in CPLR 3216 are met (see Baczkowski vCollins Constr. Co., 89 NY2d 499, 502-503 [1997]; Murray v Smith Corp., 296AD2d 445, 447 [2002]; Schwartz v Nathanson, 261 AD2d 527, 528 [1999];Schuering v Stella, 243 AD2d 623, 624 [1997]). Here, a compliance conference orderdated October 29, 2009, which set a date for the filing of the note of issue, did not constitute avalid 90-day demand because there was no warning that failure to file the note of issue by March31, 2010, would serve as a basis for dismissal pursuant to CPLR 3216 (see Banik v Evy Realty, LLC, 84 AD3d994, 996 [2011]; Sanchez vSerje, 78 AD3d 1155, 1156 [2010]; Ratway v Donnenfeld, 43 AD3d 465 [2007]). There was no otherevidence in the record that a proper 90-day demand was served upon the plaintiff, permittingdismissal pursuant to CPLR 3216 (seeClark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511 [2005]; Burdick v Marcus, 17 AD3d 388[2005]; 123X Corp. v McKenzie, 7AD3d 769 [2004]). Accordingly, the Supreme Court properly, in effect, denied theappellant's cross application [*2]to dismiss the action pursuant toCPLR 3216, and granted the plaintiff's motion to extend the time to serve and file a note of issue.Rivera, J.P., Florio, Eng, Hall and Cohen, JJ., concur.