CPLR R. 3216

It is well settled that CPLR 3216 permits a court to dismiss an
action for want of prosecution only after the court or the defendant
has served the plaintiff with a written notice demanding that the
plaintiff resume prosecution of the action and serve and file a note of
issue within 90 days after receipt of the demand, and also stating that
the failure to comply with the demand will serve as the basis for a
motion to dismiss the action. Since CPLR 3216 is a legislative creation
and not part of a court's inherent power (see Airmont Homes v Town of Ramapo, 69 NY2d 901, 902; Cohn v Borchard Affiliations,
25 NY2d 237, 248), the failure to serve a written notice that conforms
to the provisions of CPLR 3216 is the failure of a condition precedent
to dismissal of the action (see Airmont Homes v Town of Ramapo, 69 NY2d at 902; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996; Schuering v Stella, 243 AD2d 623; Ameropan Realty Corp. v Rangeley Lakes Corp., 222 AD2d 631, 632).
[*2]

The appellant's notice, dated
July 31, 2007, demanding that the plaintiffs serve and file a note of
issue cannot be deemed a notice pursuant to CPLR 3216 because it failed
to notify the plaintiffs that they were "to resume prosecution of the
action and to serve and file a note of issue within ninety days after
receipt of such demand" (CPLR 3216[b][3]). Since a proper notice was
not received by the plaintiffs prior to the appellant's motion, the
Supreme Court was not authorized to dismiss the complaint insofar as
asserted against the appellant pursuant to CPLR 3216 (see Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996; Schuering v Stella, 243 AD2d 623; Ameropan Realty Corp. v Rangeley Lakes Corp., 222 AD2d at 632).