Passet v. Menorah Nursing Home, Inc., 2008-11217

Citation889 N.Y.S.2d 659,2009 NY Slip Op 9009,68 A.D.3d 735
Decision Date01 December 2009
Docket Number2008-11217
PartiesANN PASSET, Respondent, v. MENORAH NURSING HOME, INC., Doing Business as MENORAH NURSING HOME & HOSPITAL FOR THE AGED, et al., Appellants.
CourtNew York Supreme Court Appellate Division

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.

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4 cases
  • Dominguez v. Jamaica Med. Ctr.
    • United States
    • New York Supreme Court Appellate Division
    • 20 Abril 2010
    ...failure to comply with the demand will serve as a basis for a motion to dismiss the action ( see Passet v. Menorah Nursing Home, Inc., 68 A.D.3d 735, 889 N.Y.S.2d 659; Itskov v. Menorah Home & Hosp. for the Aged & Infirm, 68 A.D.3d 723, 890 N.Y.S.2d 105; Rose v. Aziz, 60 A.D.3d 925, 874 N.Y......
  • JPMorgan Chase Bank, Nat'l Ass'n v. Eze
    • United States
    • New York Supreme Court Appellate Division
    • 25 Noviembre 2020
    ...to dismiss the action (see CPLR 3216[b][3] ; Wasif v. Khan, 82 A.D.3d 1084, 1084, 919 N.Y.S.2d 203 ; Passet v. Menorah Nursing Home Inc., 68 A.D.3d 735, 735–736, 889 N.Y.S.2d 659 ). Since CPLR 3216 is a legislative creation and not part of a court's inherent power (see Airmont Homes v. Town......
  • Pursoo v. Ngala-El
    • United States
    • United States State Supreme Court (New York)
    • 3 Febrero 2012
    ...the requirements of CPLR § 3216 is the failure of a condition precedent to dismissal of the action. Passet v. Menorah Nursing Home, Inc., 68 A.D.3d 735, 736, 889 N.Y.S.2d 659 (2d Dept. 2009) ; Rose v. Aziz, 60 A.D.3d 925, 926, 874 N.Y.S.2d 816 (2d Dept. 2009).1 As previously noted, the Cert......
  • Ortiz v. S&a Taxi Corp., 2009-04267
    • United States
    • New York Supreme Court Appellate Division
    • 1 Diciembre 2009

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