Opinion
March 27, 1995
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the order is reversed insofar as appealed from, with costs, the motion is granted and the cross motion is denied.
The respondent served the plaintiff with a 90-day notice (see, CPLR 3216 [b] [3]), which the plaintiff moved to strike. The respondent cross-moved to dismiss the complaint for failure to prosecute. The court denied the plaintiff's motion and granted the respondent's cross motion to dismiss the complaint. We now reverse. The record demonstrates that the plaintiff did not abandon this action, in that he attempted, within the 90 days, to serve the note of issue, but the Clerk of the Supreme Court, Kings County, refused to accept it, because the defendants had not stipulated that discovery had been completed. Moreover, the 90-day notice served by the respondent conditioned the filing of a note of issue upon the completion of discovery and was, therefore, insufficient to serve as a basis for its motion to dismiss (see, Markarian v. Hundert, 204 A.D.2d 697). Bracken, J.P., Rosenblatt, Lawrence, Krausman and Goldstein, JJ., concur.