CPLR R. 3216 Want of prosecution
Itskov v Menorah Home & Hosp. for the Aged & Infirm, 2009 NY Slip Op 08999 (App. Div., 1st, 2009)
Here, the defendant's notice dated November 5, 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] [emphasis added]; cf. Johnson v Minskoff & Sons, 287 AD2d 233, 238). Since no proper notice was received by the plaintiffs prior to the defendant's motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering v Stella, 243 AD2d at 624).
Passet v Menorah Nursing Home, Inc., 2009 NY Slip Op 09009 (App. Div., 2nd, 2009)
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 (see Rose v Aziz, 60 AD3d 925, 926). Since CPLR 3216 is a legislative creation and not part of a court's inherent power (see 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 901, 902; Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996, 997; Schuering v Stella, 243 AD2d 623, 624).
Here, the defendants' notice demanding that the plaintiff serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiff that she was "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] [emphasis added]; cf. Johnson v Minskoff & Sons, 287 AD2d 233, 238). Since no proper notice was received by the plaintiff prior to the defendants' motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d at 997; Schuering v Stella, 243 AD2d at 624).
Shcherbina v Queens Nassau Nursing Home, Inc., 2009 NY Slip Op 07615 (App. Div., 2nd, 2009)
In a compliance conference order dated April 1, 2003, the Supreme Court directed the plaintiff to file a note of issue on or before July 1, 2003, and warned that the action would be dismissed if the plaintiff failed to comply. Counsel for the plaintiff signed the order. This order had the same effect as a 90-day notice pursuant to CPLR 3216 (see Felix v County of Nassau, 52 AD3d 653, 653; Anjum v Karagoz, 48 AD3d 605, 605; Hoffman v Kessler, 28 AD3d 718). The plaintiff failed to comply with this order either by filing a timely note of issue or by moving to extend the period for doing so, and the action was properly dismissed pursuant to CPLR 3216 (see Felix v County of Nassau, 52 AD3d 653, 653-654; Anjum v Karagoz, 48 AD3d 605, 605). Since the plaintiff waited three years to move to vacate the dismissal of the action, the motion was untimely and should have been denied (see Vinikour v Jamaica Hosp., 2 AD3d 518, 519).
The bold is mine.
Compare the last two decisions with A.M. Med., P.C. v State Farm Mut. Ins. Co., 2008 NY Slip Op 28487 (App. Term, 2nd, 2008)
Wow, I just realized that these are all nursing home cases. Weird.
bruteforcelawyer.com 