Dominique v. Flushing Hospital Medical Center

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 plaintiffs failure to provide any discovery was willful, contumacious, or in bad faith (see CPLR 3126; Pascarelli v City of New York, 16 AD3d 472 [2005]; Ferrarese v USAA Cas. Ins. Co., 271 AD2d 401 [2000]). 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 NY2d 228 [1995]; O’Connell v City Wide Auto Leasing, 6 AD3d 682 [2004]; Roth v Black Star Publ. Co., 302 AD2d 442 [2003]). Here, no such 90-day demand was served. H. Miller, J.P., Goldstein, Mastro and Dillon, JJ., concur.