CECERE v. PETERS (2000)

Order, Supreme Court, Bronx County (Janice Bowman, J.), entered December 17, 1998, which granted defendants' motion and cross motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute, unanimously affirmed, without costs.

 Plaintiff's claim that defendants' 90-day notice was defective pursuant to CPLR 3216(b)(3) because it was not sent by registered or certified mail was not raised in the motion court and, accordingly, is not preserved for our review.   Were we to consider it, we would find that any noncompliance by defendants with the statutorily prescribed form of mailing was without prejudice to plaintiff, who received the notices.   Defendants' nonconforming mailing amounted to no more than a procedural irregularity and, as such, did not constitute a jurisdictional impediment to defendants' ensuing motions to dismiss for failure to prosecute (Balancio v. Am. Optical Corp., 66 N.Y.2d 750, 751, 497 N.Y.S.2d 360, 488 N.E.2d 106;  Beermont Corp. v. Yager, 34 A.D.2d 589, 308 N.Y.S.2d 109).   Although plaintiff alleges that defendants contributed to the delay in the action's prosecution by not responding to her attempts to stipulate to the notice of medical malpractice nunc pro tunc, the record shows that plaintiff waited almost 2 1/212 years to take any action to prosecute the lawsuit and, indeed, that no action was taken until defendants moved to dismiss for plaintiff's failure to respond to their 90-day notices.   Moreover, the action finally taken by plaintiff was not to file a note of issue or to seek to avert her impending default for failing to timely file a note of issue (see Levin v. Levin, 256 A.D.2d 447, 682 N.Y.S.2d 92).   Thus, “[i]n view of plaintiff's persistent neglect despite repeated opportunities to resume prosecution of the action and the absence of any timely proffered reasonable excuse for the extensive delay” (Baczkowski v. D.A. Collins Constr. Co., Inc., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460), the complaint was properly dismissed.

MEMORANDUM DECISION.