Neary v. Tower Ins.

• Decision Date: 03 April 2012
• Citation: 941 N.Y.S.2d 277,2012 N.Y. Slip Op. 02470,94 A.D.3d 723
• Parties: Kathleen NEARY, etc., respondent, v. TOWER INSURANCE, et al., defendants, Lincoln Brokerage Corporation, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02470

94 A.D.3d 723

941 N.Y.S.2d 277

Kathleen NEARY, etc., respondent,

v.TOWER INSURANCE, et al., defendants, Lincoln Brokerage Corporation, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 3, 2012.

Wade Clark Mulcahy, New York, N.Y. (David F. Tavella of counsel), for appellant.

Mark E. Seitelman Law Offices, P.C., New York, N.Y. (Raphael Rybak of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.

In an action, inter alia, to recover damages for failure to procure insurance coverage, the defendant Lincoln Brokerage Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (F.Rivera, J.), dated July 9, 2010, as granted that branch of the plaintiff's motion which was to restore this action to active status.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff moved, inter alia, to restore this action to active status after the Supreme Court, sua sponte, dismissed it pursuant to CPLR 3216 for failure to timely file a note of issue pursuant to a so-ordered stipulation dated May 20, 2008.

“[W]hile the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” ( Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333, citing Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 502–503, 655 N.Y.S.2d 848, 678 N.E.2d 460; see Murray v. Smith Corp., 296 A.D.2d 445, 446–447, 744 N.Y.S.2d 901; Delgado v. New York City Hous. Auth., 21 A.D.3d 522, 522, 801 N.Y.S.2d 43). A 90–day demand to file a note of issue is one of the statutory preconditions ( see CPLR 3216[b] [3]; Maharaj v. LaRoche, 69 A.D.3d 684, 684, 891 N.Y.S.2d 653).

Contrary to the contention of the defendant Lincoln Brokerage Corporation (hereinafter Lincoln), a compliance conference order dated December 5, 2007, which set a date for the filing of a note of issue, did not constitute a valid 90–day demand since it specifically stated that it was not an order constituting a CPLR 3216 notice and, in any event, did not contain language warning that failure to file the note of issue by the deadline date of April 14, 2008, would serve as a basis for dismissal under CPLR 3216 ( see Banik v. Evy Realty, LLC, 84 A.D.3d at 996, 925 N.Y.S.2d 333; cf. Sapir v. Krause, Inc., 8 A.D.3d 356, 356, 777 N.Y.S.2d 766). Moreover, the so-ordered stipulation dated May 20, 2008, which superseded the order dated December 5, 2007, extended the plaintiff's time to file a note of issue until September 17, 2008. This stipulation cannot be deemed a 90–day...