Opinion
April 10, 2001.
Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about November 22, 1999, which, in an action for medical malpractice, granted defendant doctor's motion to dismiss the action for failure to prosecute, and order, same court and Justice, entered on or about February 1, 2000, which denied defendant hospital's motion to dismiss the action for failure to prosecute, unanimously affirmed, without costs.
Janese N. Thompson and W. Charles Robinson, for Plaintiff-Appellant
Timothy K. Gibbons, for Defendants-Respondents
Rosenberger, J.P., Ellerin, Wallach, Lerner, Rubin, JJ.
Since the notice of entry of the November 22, 1999 order set forth an incorrect date of entry, its service was a nullity; accordingly, plaintiff's appeal was timely. The complaint was properly dismissed as against defendant doctor based upon plaintiff's failure to file a note of issue in response to his second 90-day demand, his showing that the disclosure plaintiff claimed was still outstanding had in fact been provided, and plaintiff's failure to submit an expert medical affidavit and otherwise show that her action has merit. However, with respect to defendant hospital, since service of a 90-day demand is a condition precedent to a CPLR 3216 dismissal, and since its first 90-day demand that culminated in the denial of its prior motion to dismiss could not serve as the foundation for its second motion to dismiss, its failure to serve a second demand precluded the granting of its second motion (see, Ciminelli Constr. Co. v. City of Buffalo, 110 A.D.2d 1075).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.