Divjak v. New York Hospital-Cornell Medical Center

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an amended order of the Supreme Court, Kings County (Levine, J.), dated February 28, 1994, which adhered to a prior determination of the same court contained in an order dated January 6, 1994, granting the defendant’s cross motion to dismiss the complaint.

Ordered that the amended order is reversed insofar as appealed from, on the law, with costs, the defendant’s cross motion to dismiss the complaint is denied, and the complaint is reinstated.

On July 8, 1993, the defendant served the plaintiff with notice pursuant to CPLR 3216 to serve and file a note of issue within 90 days. By notice of motion dated September 27, 1993, the defendant cross-moved to dismiss the action for failure to prosecute. Since the cross motion to dismiss was served before the expiration of the 90-day period, the Supreme Court lacked jurisdiction to entertain the cross motion (see, Lyons v Butler, 134 AD2d 576; Genovese v Kogel Materials Corp., 61 AD2d 820). Accordingly, the Supreme Court erred by granting the defendant’s cross motion to dismiss the action for failure to prosecute. Sullivan, J. P., Miller, Coper tino, Joy and Friedmann, JJ., concur.