GONZALEZ v. LEYBOVICH (2007)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Kurtz, J.), dated June 29, 2006, which granted the plaintiff's motion to vacate the dismissal of the action pursuant to CPLR 3216, to restore the action to active status, and to extend her time to file a note of issue.

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the defendants' contention, the compliance conference order dated August 5, 2003, cannot be deemed a 90-day notice pursuant to CPLR 3216 since it gave the plaintiff only 77 days within which to file the note of issue (see Wollman v. Berliner, 29 A.D.3d 786, 816 N.Y.S.2d 127;  Delgado v. New York City Hous. Auth., 21 A.D.3d 522, 801 N.Y.S.2d 43;  Vasquez v. Big Apple Constr. Corp., 306 A.D.2d 465, 762 N.Y.S.2d 254).   Since there was a failure of a CPLR 3216 statutory precondition to dismissal, the Supreme Court was not authorized to dismiss the action on its own motion (see Schwartz v. Nathanson, 261 A.D.2d 527, 690 N.Y.S.2d 635).   Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, to vacate the dismissal of the action and to restore the action to active status.

The defendants' remaining contention is without merit (see Fade v. Pugliani, 8 A.D.3d 612, 614-615, 779 N.Y.S.2d 568).