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A NINETY-DAY NOTICE WHICH DOES NOT STATE THAT FAILURE TO COMPLY WILL RESULT IN DISMISSAL OF THE ACTION IS DEFECTIVE AND HAS NO EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 90-day notice was defective because it did not state that failure to comply with the demand will result in dismissal of the action:

“CPLR 3216 permits a court to dismiss a complaint 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 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, 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 complaint” … .

Here, the two 90-day notices served by the defendant and an order issued by the court were all defective in that they did not state that the plaintiff’s failure to comply with the demands contained therein would serve as a basis for a motion to dismiss the complaint for failure to prosecute … . Accordingly, the Supreme Court should have denied the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint. Terryn v Rubin, 2025 NY Slip Op 04741, Second Dept 8-20-25

Practice Point: A ninety-day demand which fails to state dismissal of the action will result from a failure to comply is defective and has no effect.

 

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