Opinion
May 7, 1985
Appeal from the Supreme Court, New York County (Seymour Schwartz, J.).
Plaintiff's notice does not literally satisfy the requirements of a 90-day notice pursuant to CPLR 3216. However, as Special Term noted, the rules changed, while this action was pending, to require a precalendar conference prior to serving and filing a note of issue and statement of readiness. (Rules of Sup Ct, N.Y. Bronx Counties, 22 NYCRR 660.35.) Here, issue was joined more than one year prior to promulgation of the rule. On the facts of this case, it was not an abuse of discretion to deem the notice served by plaintiff's attorney to have been sufficient compliance. Defendants do not deny the action is meritorious, as demonstrated in plaintiff's moving papers. Moreover the action now appears to be ready for trial.
However, the dilatory tactics of plaintiff's attorney throughout have been so gross that a sanction of $1,500 to be paid to defendants by plaintiff's attorney personally, and not by his client, is appropriate, as we have directed.
Concur — Sullivan, J.P., Fein, Milonas and Kassal, JJ.