| Armstrong v B.R. Fries & Assoc., Inc. |
| 2012 NY Slip Op 04071 [95 AD3d 697] |
| May 24, 2012 |
| Appellate Division, First Department |
| Raymond Armstrong, Appellant, v B.R. Fries &Associates, Inc., Respondent. (And a Third-Party Action.) |
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Order, Supreme Court, New York County (Louis B. York, J.), entered October 26, 2011,which denied plaintiff's motion to vacate dismissal of the action and restore it to the calendar,unanimously reversed, on the law, without costs, the motion granted, the dismissal vacated, andthe matter restored to the active calendar. Appeal from order, same court and Justice, enteredOctober 15, 2010, which sua sponte directed dismissal of the complaint unless plaintiff filed anote of issue on October 20, 2010, unanimously dismissed, without costs, as taken from anonappealable order.
Plaintiff's motion to vacate the order of dismissal should have been granted since, whetherthe dismissal was pursuant to CPLR 3216 (b) (3) or CPLR 3126, it did not comply with statutoryrequirements. The case was marked dismissed after plaintiff failed to comply with a statusconference order directing him to serve and file a note of issue within seven days. That order didnot comply with the requirements of CPLR 3216 (b) in that plaintiff was not given 90 days to filea note of issue, and the order did not contain a statement that, inter alia, a "default by the partyupon whom such notice is served in complying with such demand within said ninety day periodwill serve as a basis for a motion by the party serving said demand for dismissal as against himfor unreasonably neglecting to proceed" (CPLR 3216 [b] [3]; see Cadichon v Facelle, 18 NY3d 230, 235 [2011]). Since therewas no motion pursuant to CPLR 3216 (b) (3), or notice to plaintiff, the case could not bedismissed for failure to prosecute (see Cadichon at 235).
Nor was dismissal proper as a discovery sanction pursuant to CPLR 3126 (3), since there wasno finding of "willful and contumacious" conduct on plaintiff's part justifying dismissal of thecomplaint (see Jones v Green, 34AD3d 260, 261 [2006]). Moreover, the extreme penalty of dismissal should not be imposedin the absence of any prior notice to plaintiff that such a sanction might be imminent (seePostel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]). We [*2]note that plaintiff's adversaries did not move for such relief and didnot oppose the motion to vacate or this appeal.
The status conference order itself is not appealable as of right because it is not an orderwhich determined a motion made upon notice (see Postel at 41).Concur—Gonzalez, P.J., Andrias, Saxe, DeGrasse and Román, JJ.