Opinion
2002-06338
Submitted May 28, 2003.
June 23, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LaTorella, J.), dated May 3, 2002, which denied his motion to vacate the dismissal of the action pursuant to CPLR 3216.
O'Dwyer Bernstien, LLP, New York, N.Y. (Gary Silverman and Steven Aripotch of counsel), for appellant.
Altman Altman, Bronx, N.Y. (Joseph A. Altman of counsel), for respondent Big Apple Construction Corporation.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.
The demand attached to the Supreme Court's compliance conference order dated June 15, 2000, cannot be deemed a 90-day demand pursuant to CPLR 3216 because it gave the plaintiff only 85 days within which to file the note of issue. The Supreme Court was not authorized to dismiss the action on its own motion, since the demand failed to comply with a condition precedent to dismissal (see Beepat v. James, 303 A.D.2d 345; Halali v. Evanston Ins. Co., 288 A.D.2d 260, 261; Schwartz v. Nathanson, 261 A.D.2d 527, 528; Schuering v. Stella, 243 A.D.2d 623, 624). Accordingly, the plaintiff's motion to vacate the dismissal should have been granted.
Contrary to the respondent's contentions, this issue may be raised for the first time on appeal (see Beepat v. James, supra; Weiner v. MK VII-Westchester, 292 A.D.2d 597, 598).
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN, H. MILLER and CRANE, JJ., concur.