GREENE v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY (1999)

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered August 13, 1998, denying defendant's motion to dismiss the complaint pursuant to CPLR 3126 as a discovery sanction and pursuant to CPLR 3216 for failure to prosecute, unanimously affirmed, with costs.

 Inasmuch as it had been ordered that plaintiff's deposition was to take place at a time mutually convenient to the parties and defendant nonetheless noticed the deposition without consulting plaintiff, the motion court properly determined that plaintiff's failure to appear did not warrant dismissal of the complaint pursuant to CPLR 3126.   We note in this connection the absence of any indication that defendant made a further request for plaintiff's deposition during the subsequent years of delay about which it now complains, or that it sought sanctions during that intervening period.   Dismissal pursuant to CPLR 3216 for failure to prosecute was also properly denied by the motion court since it is undisputed that defendant failed to serve the 90-day demand to prosecute mandated by CPLR 3216 as a condition of dismissal thereunder (see, 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).

We have considered defendant's other arguments and find them to be unpersuasive.

MEMORANDUM DECISION.