| Guy v Hatsis |
| 2013 NY Slip Op 03970 [107 AD3d 671] |
| June 5, 2013 |
| Appellate Division, Second Department |
| Kara Guy, Appellant, v Alexander Hatsis,Respondent. |
—[*1] Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (William P. Nolan ofcounsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Nassau County(Bruno, J.), dated June 1, 2012, as denied her motion, in effect, to vacate the dismissal ofthe action pursuant to CPLR 3216, restore the action to the trial calendar, and extend thetime to file a note of issue.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the plaintiff's motion, in effect, to vacate the dismissal of the action pursuant toCPLR 3216, restore the action to the trial calendar, and extend the time to file a note ofissue is granted.
The certification order dated March 2, 2010, did not constitute a valid 90-daydemand pursuant to CPLR 3216 because it directed the plaintiff to file a note of issuewithin 70 days, rather than 90 days, of the date of the order. Since the order failed toconform with a statutorily mandated condition precedent to dismissal of the action, theSupreme Court was not authorized to dismiss the action pursuant to CPLR 3216 (see Chrostowski v Chow, 37AD3d 638, 639 [2007]; Wollman v Berliner, 29 AD3d 786 [2006]; Beepat vJames, 303 AD2d 345, 346 [2003]). Although the plaintiff raises this issue for thefirst time on appeal, it involves a question of law that appears on the face of the record,and could not have been avoided if brought to the attention of the Supreme Court (see Michaels v Sunrise Bldg. &Remodeling, Inc., 65 AD3d 1021, 1024 [2009]; Chrostowski v Chow,37 AD3d at 639; Beepat v James, 303 AD2d at 346). Accordingly, we reach theissue and determine that the plaintiff's motion, in effect, to vacate the dismissal of theaction pursuant to CPLR 3216, restore the action to the trial calendar, and extend thetime to file a note of issue should have been granted. Skelos, J.P., Chambers, Sgroi andHinds-Radix, JJ., concur.