Delgado v. Jewish Child Care Assn.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J), dated April 6, 2006, which granted the plaintiff’s motion, inter alia, to restore the action to active status. Ordered that the order is affirmed, without costs or disbursements. Contrary to the defendants’ contention, the compliance conference order dated February 15, 2001, could not be deemed a 90-day demand pursuant to CELR 3216 since it gave the plaintiff only 89 days within which to file the note of issue (see Wollman v Berliner, 29 AD3d 786 [2006]; Delgado v New York City Hous. Auth., 21 AD3d 522 [2005]; Vasquez v Big Apple Constr. Corp., 306 AD2d 465 [2003]). Because the compliance conference order did not meet the statutory preconditions pursuant to CELR 3216, there was a failure of a condition precedent, and the court was not authorized to dismiss the action on 399 its own motion (see Schwartz v Nathanson, 261 AD2d 527 [1999]). Accordingly, the plaintiffs motion to restore the action to active status was properly granted (cf. Lopez v Imperial Delivery Serv., 282 AD2d 190, 199-200 [2001]). Crane, J.P., Santucci, Florio, Dillon and Balkin, JJ., concur.