Justice Randy Sue Marber
Pursoo sought vacatur of an order dismissing the action, restoring it to active status and an extension of time to file a note of issue. The parties filed a stipulation extending Pursoo’s time to file a note of issue. She failed to do so and the action was dismissed. Pursoo claimed she had no intention of abandoning the action, claiming the delay resulted from her moving for an entry of a default against Ngala-El. She argued she took no action pending a decision on the motion, which was denied, and that she appealed. The court noted a case could not be dismissed under CPLR 3216(a) unless a written demand was served on the party against whom relief was sought to resume prosecution. It found courts were prohibited from dismissing an action based on a neglect to prosecute unless the statutory preconditions were satisfied. The court ruled the prior certification order advising Pursoo to file a note of issue constituted a valid 90-day demand notice. Yet, it concluded the parties’ stipulation, extending Pursoo’s time to file a note of issue, did not constitute a demand as it lacked the required language advising her that a failure to comply would serve as a basis for dismissal under §3216. Therefore, Pursoo’s motion was granted.
