Heifetz v. Godoy
| Citation | 832 N.Y.S.2d 261,38 A.D.3d 605,2007 NY Slip Op 02070 |
| Decision Date | 13 March 2007 |
| Docket Number | 2006-06675. |
| Parties | IRENE HEIFETZ et al., Respondents, v. MIGUEL GODOY, Doing Business as MPG CONSTRUCTION, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
Contrary to the defendant's contention, the compliance conference order dated September 14, 2004 could not be deemed a 90-day demand pursuant to CPLR 3216 since it gave the plaintiffs only 78 days within which to file the note of issue (see Wollman v Berliner, 29 AD3d 786 [2006]; Delgado v New York City Hous. Auth., 21 AD3d 522 [2005]; Vasquez v Big Apple Constr. Corp., 306 AD2d 465 [2003]). Furthermore, the subsequent order dated January 13, 2005 which extended the plaintiffs' deadline for filing a note of issue, was also insufficient to constitute a 90-day demand since it did not provide the required 90-day notice and failed to advise the plaintiffs that the failure to comply with the demand would serve as the basis for a motion to dismiss the action (see Wollman v Berliner, supra; Delgado v New York City Hous. Auth., supra; O'Connell v City Wide Auto Leasing, 6 AD3d 682, 683 [2004]). Accordingly, the Supreme Court properly granted the plaintiffs' motion to restore the action to the active calendar and to extend the time to file a note of issue and denied the defendant's cross motion pursuant to CPLR 3216 to dismiss the action.
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