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THE CONDITIONAL ORDER OF DISMISSAL DIRECTING THE FILING OF A NOTE OF ISSUE DID NOT MEET THE REQUIREMENTS OF CPLR 3216; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the conditional order of dismissal directing plaintiff to file a note of issue did not meet the statutory requirements of CPLR 3216 and, therefore, the action should not have been dismissed:

The conditional order of dismissal directing plaintiff to file a note of issue by February 28, 2019 or the action would be dismissed failed to adhere to the statutory procedure for dismissing an action for failure to file a note of issue. Specifically, the conditional order of dismissal failed to provide plaintiff with the requisite 90 days to file a note of issue, failed to specify the conduct constituting the neglect demonstrating a general pattern of delay, and did not constitute the requisite written notice because it was not signed by the parties (see CPLR 3216[a], [b][3] … ). Flecha v Neira, 2021 NY Slip Op 03548, First Dept 6-8-21

 

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