Flecha v. Neira

Flecha v Neira (2021 NY Slip Op 03548)

Flecha v Neira

2021 NY Slip Op 03548

Decided on June 08, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 08, 2021
Before: Renwick, J.P., Kern, Scarpulla, Mendez, JJ.

Index No. 22834/17E Appeal No. 14021N Case No. 2020-01082

[*1]William Flecha, Plaintiff-Appellant,

v

Roberto Neira, Defendant-Respondent.

Michael Manoussos & Co PLLC, Kew Gardens (Jorge Rivera of counsel), for appellant.

Alan B. Brill, P.C., New City (Veronica A. McMillan of counsel), for respondent.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered September 12, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to vacate a May 3, 2019 order dismissing the action for failure to comply with a prior order of January 11, 2019 conditionally dismissing the complaint upon failure to file a note of issue by February 28, 2019, unanimously reversed, on the law, without costs, the motion granted and the order of dismissal vacated.

The conditional order of dismissal directing plaintiff to file a note of issue by February 28, 2019 or the action would be dismissed failed to adhere to the statutory procedure for dismissing an action for failure to file a note of issue. Specifically, the conditional order of dismissal failed to provide plaintiff with the requisite 90 days to file a note of issue, failed to specify the conduct constituting the neglect demonstrating a general pattern of delay, and did not constitute the requisite written notice because it was not signed by the parties (see CPLR 3216[a], [b][3]; Board of Mgrs. of the Lore Condominium v Gaetano, 139 AD3d 550 [1st Dept 2016]; Goetz v Public Serv. Truck Renting, Inc., 162 AD3d 859, 860-861 [2d Dept 2018]). The compliance conference order dated November 1, 2018 suffers from the same infirmities as the February 28, 2019 order.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 8, 2021