Argued February 7, 2003.
March 3, 2003.
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Milano, J.), dated July 20, 2001, which denied their motion to vacate an order of the same court dated May 19, 2000, which, sua sponte, dismissed the complaint for failure to timely file a note of issue.
Pollack, Pollack, Isaac De Cicco, New York, N.Y. (Brian J. Isaac of counsel), for appellants.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N.Y. (Richard E. Lerner of counsel), for respondents Richard R. James and Druvanand Arjun.
London Fischer, LLP, New York, N.Y. (Myra Needleman of counsel), for respondents Ramkrishna Samaron and Raakesh Samaron.
Before: ANITA R. FLORIO, J.P., STEPHEN G. CRANE, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
ORDERED that the order dated July 20, 2001, is reversed, on the law, with one bill of costs, the motion is granted, the order dated May 19, 2000, is vacated, and the complaint is reinstated.
The Supreme Court's order dated December 7, 1999, cannot be deemed a 90-day demand since it gave the plaintiffs only 87 days within which to file the note of issue. The failure of the order to conform to the provisions of CPLR 3216 constitutes a failure of a condition precedent to dismissal of the complaint (see Schuering v. Stella, 243 A.D.2d 623, 624). Since no proper notice was served upon the plaintiffs, the Supreme Court was not authorized to dismiss the complaint pursuant to CPLR 3216 (see Chase v. Scavuzzo, 87 N.Y.2d 228, 230, 233; Halali v. Evanston Ins. Co., 288 A.D.2d 260, 261; Schwartz v. Nathanson, 261 A.D.2d 527, 528; Ameropan Realty Corp. v. Rangeley Lakes Corp., 222 A.D.2d 631, 632; cf. Flomenhaft v. Baron, 281 A.D.2d 389, 390; Seletsky v. St. Francis Hosp., 263 A.D.2d 452, 453; Safina v. Queens-Long Is. Med. Group, 238 A.D.2d 395; Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653, 654). Therefore, the plaintiffs' motion to vacate the order of dismissal should have been granted.
Contrary to the defendants' contentions, this issue may be raised for the first time on appeal because it is one of law which appears on the face of the record and could not have been avoided if it had been raised at the proper juncture (see Weiner v. MKVII-Westchester, 292 A.D.2d 597, 598; Lopez v. Robbins, 269 A.D.2d 364, 365; Block v. Magee, 146 A.D.2d 730, 732).
The parties' remaining contentions are without merit.
FLORIO, J.P., CRANE, COZIER and RIVERA, JJ., concur.