ITSKOV v. MENORAH HOME AND HOSPITAL FOR AGED AND INFIRM (2009)

In an action to recover damages for medical malpractice, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated August 8, 2008, as denied its motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 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 serve 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 (see Rose v. Aziz, 60 A.D.3d 925, 926, 874 N.Y.S.2d 816).   Since CPLR 3216 is a legislative creation and not part of a court's inherent power (see 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, 69 N.Y.2d 901, 902, 516 N.Y.S.2d 193, 508 N.E.2d 927;  Rose v. Aziz, 60 A.D.3d at 926, 874 N.Y.S.2d 816;  Harrison v. Good Samaritan Hosp. Med. Ctr., 43 A.D.3d 996, 997, 843 N.Y.S.2d 123;  Schuering v. Stella, 243 A.D.2d 623, 624, 663 N.Y.S.2d 232).

 Here, the defendant's notice dated November 5, 2007, demanding that the plaintiffs serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiffs that they were “to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand” (CPLR 3216[b][3] [emphasis added];  cf. Johnson v. Minskoff & Sons, 287 A.D.2d 233, 238, 735 N.Y.S.2d 503).   Since no proper notice was received by the plaintiffs prior to the defendant's motion, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Rose v. Aziz, 60 A.D.3d at 926, 874 N.Y.S.2d 816;  Harrison v. Good Samaritan Hosp. Med. Ctr., 43 A.D.3d at 997, 843 N.Y.S.2d 123;  Schuering v. Stella, 243 A.D.2d at 624, 663 N.Y.S.2d 232).