DOMINIQUE v. Chu Fu Wang, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Gerda DOMINIQUE, respondent, v. FLUSHING HOSPITAL MEDICAL CENTER, defendant, Chu Fu Wang, appellant.

Decided: October 31, 2005

HOWARD MILLER, J.P., GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and MARK C. DILLON, JJ. Dwyer & Taglia, New York, N.Y. (Gary J. Dwyer of counsel), for appellant. Gamiel A. Ramson, New York, N.Y., for respondent.

In an action to recover damages for medical malpractice, the defendant Chu Fu Wang appeals from an order of the Supreme Court, Queens County (Golar, J.), dated July 15, 2004, which denied his motion to dismiss the complaint insofar as asserted against him pursuant to CPLR 3126 and 3216 for failure to prosecute.

ORDERED that the order is affirmed, with costs.

 The Supreme Court providently exercised its discretion in denying the motion of the defendant Chu Fu Wang (hereinafter Wang) to dismiss the complaint insofar as asserted against him.   Wang did not clearly demonstrate that the plaintiff's failure to provide any discovery was willful, contumacious, or in bad faith (see CPLR 3126;  Pascarelli v. City of New York, 16 A.D.3d 472, 791 N.Y.S.2d 617;  Ferrarese v. USAA Cas. Ins. Co., 271 A.D.2d 401, 707 N.Y.S.2d 327).   Courts do not possess the power to dismiss an action for general delay unless the plaintiff has been served with a 90-day demand for a note of issue (see CPLR 3216;  Chase v. Scavuzzo, 87 N.Y.2d 228, 638 N.Y.S.2d 587, 661 N.E.2d 1368;  O'Connell v. City Wide Auto Leasing, 6 A.D.3d 682, 775 N.Y.S.2d 543;  Roth v. Black Star Publ. Co., 302 A.D.2d 442, 753 N.Y.S.2d 743).   Here, no such 90-day demand was served.

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