Wollman v. Berliner
| Decision Date | 16 May 2006 |
| Docket Number | 2005-08418. |
| Citation | 2006 NY Slip Op 03888,816 N.Y.S.2d 127,29 A.D.3d 786 |
| Parties | ELLEN WOLLMAN, Respondent, v. BRIAN BERLINER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the defendant's contention, the compliance conference order dated March 10, 2004, cannot be deemed a 90-day demand pursuant to CPLR 3216 since it gave the plaintiff only 89 days within which to file the note of issue (see Delgado v New York City Hous. Auth., 21 AD3d 522 [2005]; Vasquez v Big Apple Constr. Corp., 306 AD2d 465 [2003]; Beepat v James, 303 AD2d 345 [2003]). Furthermore, the subsequent so-ordered stipulations between the parties which extended the plaintiff's deadline for filing a note of issue were also insufficient to constitute 90-day demands since they did not provide the required 90-day notice and failed to advise the plaintiff that the failure to comply with the demands would serve as the basis for a motion to dismiss the action (see Delgado v New York City Hous. Auth., supra; O'Connell v City Wide Auto Leasing, 6 AD3d 682 [2004]; Akpinar v John Hancock Mut. Life Ins. Co., 302 AD2d 337 [2003]). Since the Supreme Court was not authorized to dismiss the action on its own motion pursuant to CPLR 3216 (see Schwartz v Nathanson, 261 AD2d 527 [1999]), the action was properly restored to active status.
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