Summary
In Boland v. Biordi (282 AD2d 421, 422) this Court explicitly found that an order of the Supreme Court dated "four months after issue was joined in the third-party action, and shortly after the third-party defendants served the plaintiffs with extensive disclosure demands, did not constitute a valid 90-day notice pursuant to CPLR 3216" (citing Schuering v. Stella, 243 AD2d 623, 624). Schuering v. Stella (supra at 624) states that a court order "[which does] not conform to the provisions" of CPLR 3216 cannot be deemed a valid 90-day notice.
Summary of this case from Benitez v. Mutual of America Life Ins. Co.Opinion
Argued March 8, 2001.
April 2, 2001.
In an action to recover damages for medical malpractice, etc., the defendant third-party plaintiff and the third-party defendants separately appeal from (1) an order of the Supreme Court, Nassau County (Davis, J.), dated May 13, 2000, which denied their respective motions pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute based on the plaintiffs failure to comply with a prior order of the same court dated November 5, 1999, and (2) an order of the same court, dated September 19, 2000, which denied their separate motions pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute based on the plaintiffs' failure to serve and file a note of issue in accordance with the order dated May 13, 2000.
Ivone, Devine Jensen, Lake Success, N.Y. (Jonathan Rubin of counsel), for defendant third-party plaintiff-appellant.
Abbate, Lawrence Worden, P. C., Melville, N.Y. (Roger B. Lawrence and Mary Beth Reilly of counsel), for third-party defendants-appellants.
Oshman, Helfenstein, Bernstein, Mirisola Schwartz, LLP, New York, N Y (Ephrem Wertenteil of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, ANITA R. FLORIO, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the orders are affirmed, with one bill of costs.
Under the circumstances, the order of the Supreme Court dated November 5, 1999, four months after issue was joined in the third-party action, and shortly after the third-party defendants served the plaintiffs with extensive disclosure demands, did not constitute a valid 90-day notice pursuant to CPLR 3216 (see, Schuering v. Stella, 243 A.D.2d 623; cf., Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653). Furthermore, the order dated May 13, 2000, extending the plaintiffs' time to serve and file a note of issue was not based upon a valid 90-day notice. Therefore, the plaintiffs' failure to comply with that order did not require dismissal (see, Schuering v. Stella, supra).