August 7, 2013
Michael Armouth-Levy, appellant,
New York City, respondent. Index No. 43541/98
Becker & Russo (Avrohom Becker and Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac], of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Ronald E. Sternberg and Kathy H. Chang of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, LEONARD B. AUSTIN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated April 20, 2011, which granted the defendant's motion to dismiss the complaint for failure to prosecute.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion to dismiss the complaint for failure to prosecute is denied.
The defendant's motion to dismiss the complaint based on the inordinate and prejudicial delay in prosecuting the action should have been denied. CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action. Here, the Supreme Court did not possess the power to dismiss this pre-note of issue action on the ground of a general lack of prosecution since the plaintiff had not received a 90-day demand pursuant to CPLR 3216(b) requiring the plaintiff to serve and file a note of issue (see Chase v Scavuzzo, 87 N.Y.2d 228, 233; Airmont Homes v Town of Ramapo, 69 N.Y.2d 901, 902; Cohn v Borchard Affiliations, 25 N.Y.2d 237, 246; Arroyo v Board of Educ. of City of New York, __ A.D.3d __, 2013 NY Slip Op 05507 [2d Dept 2013]; Docteur v Interfaith Med. Ctr ., 90 A.D.3d 814, 815; Maspeth Fed. Sav. & Loan Assn. v Simon-Erdan, 67 A.D.3d 750, 751; Dominique v Flushing Hosp. Med. Ctr ., 22 A.D.3d 789). Accordingly, the defendant's motion to dismiss the complaint for failure to prosecute should have been denied.
DILLON, J.P., BALKIN, CHAMBERS and AUSTIN, JJ., concur.