Harrison v. Good Samaritan Hospital Medical Center, 2006-10427.
Citation | 43 A.D.3d 996,843 N.Y.S.2d 123,2007 NY Slip Op 06833 |
Decision Date | 18 September 2007 |
Docket Number | 2006-10427. |
Parties | DONNA HARRISON, Respondent, v. GOOD SAMARITAN HOSPITAL MEDICAL CENTER, Appellant. |
Court | New York Supreme Court Appellate Division |
Ordered that the order is affirmed, with costs.
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 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 [1987]; 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, supra at 902; Ameropan Realty Corp. v Rangeley Lakes Corp., 222 AD2d 631, 632 [1995]).
The defendant's demand dated November 11, 2004 for the resumption of the prosecution of the action cannot be deemed a notice pursuant to CPLR 3216 because it did not conform to the provisions of that statute. Since a proper notice was not served upon the plaintiff prior to the defendant's motion, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216 . Accordingly, the Supreme Court properly granted the plaintiff's motion to vacate the judgment dismissing the action.
To continue reading
Request your trial-
Dominguez v. Jamaica Med. Ctr.
...& Infirm, 68 A.D.3d 723, 890 N.Y.S.2d 105; Rose v. Aziz, 60 A.D.3d 925, 874 N.Y.S.2d 816; Harrison v. Good Samaritan Hosp. Med. Ctr., 43 A.D.3d 996, 843 N.Y.S.2d 123). Furthermore, the two separate conditions precedent to dismissal under CPLR 3216(b)(1) and (2) had also been met ( see Micha......
-
Wasif v. Khan
...at 902, 516 N.Y.S.2d 193, 508 N.E.2d 927; Rose v. Aziz, 60 A.D.3d 925, 926, 874 N.Y.S.2d 816; Harrison v. Good Samaritan Hosp. Med. Ctr., 43 A.D.3d 996, 997, 843 N.Y.S.2d 123; Schuering v. Stella, 243 A.D.2d 623, 624, 663 N.Y.S.2d 232). The defendant's purported 90–day demand dated Septembe......
- Gerdvil v. Tarnowski, 2006-03451.
- Granata v. Sub-Zero Freezer Company, Inc., 2006-04946.