Practice point: The certification order did not constitute a valid
90-day demand pursuant to CPLR 3216 because it directed the plaintiff to
file a note of issue within 70 days, rather than 90 days, of the date
of the order. Since the order failed to conform with a statutorily
mandated condition precedent to dismissal of the action, the Supreme
Court was not authorized to dismiss the action pursuant to CPLR 3216.
Student note: Although the plaintiff raises this issue for the
first time on appeal, it involves a question of law that appears on the
face of the record, and could not have been avoided if brought to the
attention of the Supreme Court. Accordingly, the Appellate Division reached the issue and determined that the plaintiff's
motion, in effect, to vacate the dismissal of the action pursuant to
CPLR 3216, restore the action to the trial calendar, and extend the time
to file a note of issue should have been granted.
Case: Guy v. Hatsis, NY Slip Op 03970 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: A slip on sand on a basketball court.
