A court may not dismiss an action based on neglect to prosecute unless CPLR 3216's preconditions are met. Here, the Supreme Court failed to serve a written demand upon the plaintiff to resume prosecution of the action and serve and file a note of issue within 90 days of receipt of the demand, pursuant to CPLR 3216[b][3]. Since at least one precondition set forth in CPLR 3216 was not met, the court was without power to direct dismissal of the complaint pursuant to that statute.
Deutsche Bank Trust Co. Ams. v. Gonzales, NY Slip Op 01778 (2d Dep't April 5, 2023)
