Guerrera v. Zysk , 951 N.Y.2d 399 ( 2012 )

On May 5, 2010, the defendant served the plaintiff with a written demand pursuant to CPLR 3216 to serve and file a note of issue within 90 days after receipt of the demand. Shortly thereafter, the defendant served a notice of motion dated May 5, 2010, inter alia, pursuant to CPLR 3216, in effect, to dismiss the complaint for failure to prosecute. Since the defendant’s motion was served before the expiration of the 90-day period, the Supreme Court properly denied that branch of the motion which was pursuant to CPLR 3216, in effect, to dismiss the complaint (see Weber v Kessler, 224 AD2d 520, 521 [1996]; Divjak v New York Hosp.-Cornell Med. Ctr., 219 AD2d 695 [1995]; Lyons v Butler, 134 AD2d 576 [1987]).

The defendant’s remaining contentions are without merit. Dillon, J.P, Balkin, Belen and Austin, J3., concur.