Beepat v. James
| Decision Date | 03 March 2003 |
| Citation | 303 A.D.2d 345,755 N.Y.S.2d 649 |
| Parties | JANET BEEPAT et al., Appellants,<BR>v.<BR>RICHARD R. JAMES et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order dated July 20, 2001, is reversed, on the law, with one bill of costs, the motion is granted, the order dated May 19, 2000, is vacated, and the complaint is reinstated.
The Supreme Court's order dated December 7, 1999, cannot be deemed a 90-day demand since it gave the plaintiffs only 87 days within which to file the note of issue. The failure of the order to conform to the provisions of CPLR 3216 constitutes a failure of a condition precedent to dismissal of the complaint (see Schuering v Stella, 243 AD2d 623, 624 [1997]). Since no proper notice was served upon the plaintiffs, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 . Therefore, the plaintiffs' motion to vacate the order of dismissal should have been granted.
Contrary to the defendants' contentions, this issue may be raised for the first time on appeal because it is one of law which appears on the face of the record and could not have been avoided if it had been raised at the proper juncture (see Weiner v MKVII-Westchester, 292 AD2d 597, 598 [2002]; Lopez v Robbins, 269 AD2d 364, 365 [2000]; Block v Magee, 146 AD2d 730, 732 [1989]).
The parties' remaining contentions are without merit.
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