HARRISON v. GOOD SAMARITAN HOSPITAL MEDICAL CENTER (2007)

In an action to recover damages for medical malpractice and lack of informed consent, the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated September 25, 2006, which granted the plaintiff's motion to vacate a judgment of the same court entered July 26, 2006, upon an order of the same court dated June 12, 2006, granting the defendant's unopposed motion to dismiss the action pursuant to CPLR 3216 for failure to prosecute, and restored the action to the calendar.

ORDERED that the order is affirmed, with costs.

It is well settled that CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action.   Since CPLR 3216 is a legislative creation and not part of a court's inherent power (see Airmont Homes v. Town of Ramapo, 69 N.Y.2d 901, 902, 516 N.Y.S.2d 193, 508 N.E.2d 927;  Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 248, 303 N.Y.S.2d 633, 250 N.E.2d 690), the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the action (see Airmont Homes v. Town of Ramapo, supra at 902, 516 N.Y.S.2d 193, 508 N.E.2d 927;  Ameropan Realty Corp. v. Rangeley Lakes Corp., 222 A.D.2d 631, 632, 635 N.Y.S.2d 691).

The defendant's demand dated November 11, 2004, for the resumption of the prosecution of the action cannot be deemed a notice pursuant to CPLR 3216 because it did not conform to the provisions of that statute.   Since a proper notice was not served upon the plaintiff prior to the defendant's motion, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216 (see Kesar v. Green Ridge Enters. Corp., 30 A.D.3d 471, 817 N.Y.S.2d 343;  Murray v. Smith Corp., 296 A.D.2d 445, 447, 744 N.Y.S.2d 901;  Ameropan Realty Corp. v. Rangeley Lakes Corp., supra at 632, 635 N.Y.S.2d 691).   Accordingly, the Supreme Court properly granted the plaintiff's motion to vacate the judgment dismissing the action.