The Board of Managers of the Lore Condominium v Steven Gaetano et al.,
Supreme Court of the State of New York, Appellate Division, First Department, May 19, 2016
Plaintiff, a residential Board of Managers of a condominium commenced this action against the Sponsor of the condominium for construction defects to the Condominium. In December 2013, the Supreme Court sua sponte marked the case off calendar on the grounds that Plaintiff did not file a timely Note of Issue.
In June 2015, after nearly two years of continuous settlement negotiations, Plaintiff moved to restore on the grounds that settlement negotiations, while ongoing, had fallen through. The Supreme Court denied this motion on the grounds that the case had been marked off calendar for two years, had been inactive and was seeking to be restored without justification for failing to comply with orders of the court.
Plaintiff appealed and the Appellate Division unanimously reversed on the grounds that a condition precedent to dismissal pursuant to CPLR 3216(a) was not satisfied. In order for a case to be dismisses pursuant to CPLR 3216(a) a written demand giving Plaintiff 90 days to file a note of issue must be served upon the Plaintiff. Defendant alleged that both the preliminary conference order and a previously signed stipulation constituted the CPLR 3216(a) demand. The Appellate Division disagreed on the grounds that the preliminary conference order was not signed by the parties, did not give Plaintiff 90 days to serve and file the note of issue and did not state that failure to file would serve as a basis to dismiss. The stipulation, while signed by both parties did not contain the required statutory language.