DELGADO v. JEWISH CHILD CARE ASSOC OF NEW YORK (2007)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated April 6, 2006, which granted the plaintiff's motion, inter alia, to restore the action to active status.

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

Contrary to the defendants' contention, the compliance conference order dated February 15, 2001, could not be deemed a 90-day demand pursuant to CPLR 3216 since it gave the plaintiff only 89 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).   Because the compliance conference order did not meet the statutory preconditions pursuant to CPLR 3216, there was a failure of a condition precedent, and the 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 plaintiff's motion to restore the action to active status was properly granted (cf. Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 199-200, 725 N.Y.S.2d 57).