Combs v. Lewis ( 1998 )

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about August 8, 1997, which denied defendants’ motion to dismiss the complaint for want of prosecution, unanimously affirmed, without costs.

“[C]ourts do not possess the power to dismiss an action for general delay where plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216 (b)” (Chase v Scavuzzo, 87 NY2d 228, 233). Here, the only 90-day demand that defendants ever made was in May 1990, which demand was tolled and effectively withdrawn by the stipulation dated November 17, 1990. There was, as a result, no operative demand in March 1997, when defendants renewed their motion to dismiss the complaint pursuant to CPLR 3216. Consequently, the IAS court properly denied the motion to dismiss. Concur — Lerner, P. J., Nardelli, Wallach, Williams and Saxe, JJ.