Passet v Menorah Nursing Home, Inc.

Passet v Menorah Nursing Home, Inc. 2009 NY Slip Op 09009 [68 AD3d 735] December 1, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Ann Passet, Respondent,
v
Menorah Nursing Home, Inc., Doing Business as Menorah Nursing Home & Hospital for the Aged, et al., Appellants.

—[*1] Bivona & Cohen, P.C., New York, N.Y. (Richard M. Fedrow and Patrick T. Steinbauer of counsel), for appellants.

Halperin & Halperin, P.C., New York, N.Y. (Steven T. Halperin and Andrew Poznanski of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Knipel, J.), dated September 8, 2008, which denied their motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

Ordered that the order is affirmed, with costs.

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 [2009]). 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 [1969]), 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 [1987]; Rose v Aziz, 60 AD3d at 926; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996, 997 [2007]; Schuering v Stella, 243 AD2d 623, 624 [1997]).

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 [2001]). 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). Skelos, J.P., Covello, Santucci, Chambers and Austin, JJ., concur.