HEIFETZ v. GODOY MPG (2007)

In an action to recover damages for negligence and breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated June 1, 2006, which granted the plaintiffs' motion to restore the action to active status and to extend their time to file a note of issue, and denied its cross motion pursuant to CPLR 3216 to dismiss the action.

ORDERED that the order is affirmed, with costs.

 Contrary to the defendant's contention, the compliance conference order dated September 14, 2004, could not be deemed a 90-day demand pursuant to CPLR 3216 since it gave the plaintiffs only 78 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).   Furthermore, the subsequent order dated January 13, 2005, which extended the plaintiffs' deadline for filing a note of issue, was also insufficient to constitute a 90-day demand since it did not provide the required 90-day notice and failed to advise the plaintiffs that the failure to comply with the demand would serve as the basis for a motion to dismiss the action (see Wollman v. Berliner, supra;  Delgado v. New York City Hous. Auth., supra;  O'Connell v. City Wide Auto Leasing, 6 A.D.3d 682, 683, 775 N.Y.S.2d 543).   Accordingly, the Supreme Court properly granted the plaintiffs' motion to restore the action to the active calendar and to extend the time to file a note of issue and denied the defendant's cross motion pursuant to CPLR 3216 to dismiss the action.