Pickens v. St. John's Hospital

—In an action to recover damages for medical malpractice, (1) the defendant North Shore University Hospital appeals from so much of an order of the Supreme Court, Queens County (Durante, J.), dated April I, 1997, as granted the plaintiffs’ motion for leave to file a note of issue and denied its cross motion, inter alia, to dismiss the complaint pursuant to CPLR 3126 on the ground that the plaintiffs failed to comply with stated portions of a preliminary conference order, and (2) the defendant St. John’s Hospital separately appeals from so much of the same order as denied its cross motion to dismiss the complaint. Ordered that the appeal of the defendant St. John’s Hospital is dismissed, for failure to perfect the appeal in accordance with the rules of this Court (see, 22 NYCRR 670.8 [c], [e]); and it is farther, Ordered that the order is affirmed insofar as appealed from by the defendant North Shore University Hospital; and it is further, Ordered that the respondent is awarded one bill of costs. The Supreme Court was correct in granting, upon condition, the plaintiffs’ motion for leave to file a note of issue (see, CPLR 3402). Contrary to the contention by North Shore University Hospital, the preliminary conference order cannot be deemed a 90-day notice of demand pursuant to CPLR 3216 since it does not conform to the provisions of that statute (see, Chase v Scavuzzo, 87 NY2d 228, 233; Giaimo v Roller Derby Skate Corp., 234 AD2d 340; Ameropan Realty Corp. v Rangeley Lakes Corp., 222 AD2d 631). Furthermore, the Supreme Court providently exercised its discretion in denying the cross motion of North Shore University Hospital, inter alia, to dismiss the complaint pursuant to CPLR 3126 on the ground that the plaintiffs failed to comply with stated portions of the preliminary conference order since there was no showing of willful or contumacious conduct (cf, Cutolo v Khalife, 242 AD2d 661). Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.