Sisti v. Partridge

—In an action to recover damages for medical malpractice, etc., the defendant Henry S. Partridge appeals from an order of the Supreme Court, Nassau County (Kingston, J.), dated June 6, 1995, which denied his motion to dismiss the plaintiffs’ complaint for failure to prosecute, and, as limited by his brief, from so much of an order of the same court, dated November 22, 1995, as, upon reargument, adhered to the original determination. Ordered that the appeal from the order dated June 6, 1995, is dismissed, as that order was superseded by the order dated November 22, 1995, made upon reargument; and it is further, Ordered that the order dated November 22, 1995, is affirmed insofar as appealed from; and it is further, Ordered that the respondents are awarded one bill of costs. The defendant moved to dismiss the complaint in this action due to the plaintiffs’ alleged failure to prosecute (see, CPLR 3216). However, no 90-day demand to file a note of issue was served upon the plaintiffs prior to the defendant’s motion (see, CPLR 3216 [b] [3]). Under these circumstances, the Supreme Court properly denied the motion (see, Chase v Scavuzzo, 87 NY2d 228; Weber v Kessler, 224 AD2d 520; Donnell v Madison Ave.-53rd St. Corp., 214 AD2d 307). Bracken, J. P., Santucci, McGinity and Luciano, JJ., concur.