SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1024 

CA 10-01225 

PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ. 

 

TERRY D. HILLIARD, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

HIGHLAND HOSPITAL, DEFENDANT-RESPONDENT, 

ET AL., DEFENDANTS. 

(APPEAL NO. 1.) 

 

ADAIR LAW FIRM, LLP, ROCHESTER (WILLIAM S. ROBY, III, OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

OSBORN, REED & BURKE, LLP, ROCHESTER (THOMAS C. BURKE OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order and judgment (one paper) of the Supreme

Court, Monroe County (Matthew A. Rosenbaum, J.), entered March 18,

2010 in a medical malpractice action. The order and judgment, insofar

as appealed from, granted the cross motion of defendant Highland

Hospital to dismiss the complaint. 

It is hereby ORDERED that the order and judgment insofar as

appealed from is unanimously reversed on the law without costs, the

cross motion is denied and the complaint is reinstated. 

Memorandum: Plaintiff commenced this medical malpractice action

in 2002 alleging that he suffered injuries as a result of defendant

Highland Hospital’s malpractice over a 15-year period, extending from

1985 through 2000. Defendant thereafter served a 90-day demand on

plaintiff, dated July 18, 2008, to serve and file a note of issue and

statement of readiness. By way of background, we note that in October

2008 defendant moved to dismiss the complaint based upon plaintiff’s

failure to comply with the 90-day demand. Supreme Court denied the

motion and issued a scheduling order that, inter alia, directed

plaintiff to file a note of issue on or before November 1, 2009. When

plaintiff failed to file a note of issue by that date, the court

conducted a conference during which it directed plaintiff to file the

note of issue by November 24, 2009.

Plaintiff did not file the note of issue as directed, however,

and he subsequently made a motion in January 2010 based on defendant’s

alleged spoliation of the medical records of plaintiff. Defendant

again cross-moved to dismiss the complaint based on plaintiff’s

failure to file the note of issue. With respect to the order and

judgment in appeal No. 1, we conclude that the court erred in granting
-2- 1024 

CA 10-01225 

defendant’s cross motion. Although the court also denied plaintiff’s

motion, we note that plaintiff in his brief on appeal does not address

his spoliation motion and thus is deemed to have abandoned any issues

with respect thereto (see Benshoff v Rakoczy, 79 AD3d 1736; Ciesinski

v Town of Aurora, 202 AD2d 984). 

In connection with its cross motion, defendant did not serve a

second 90-day demand before making that cross motion. “The conditions

precedent to bringing a motion to dismiss for failure to prosecute

under CPLR 3126 must be complied with strictly” (Frank L. Ciminelli

Constr. Co. v City of Buffalo, 110 AD2d 1075, 1076, appeal dismissed

65 NY2d 1053). Therefore, “[w]hile the defendant’s second motion to

dismiss may have been warranted, [the court] could not reach the

merits of the motion unless the defendant met the procedural

requirements of CPLR 3216. Service of a demand for a note of issue is

a condition precedent to a dismissal for failure to prosecute”

(Shickler v Nassau Trust Co., 111 AD2d 800, 800-801; see Frank L.

Ciminelli Constr. Co., 110 AD2d at 1076). Inasmuch as “defendant had

not complied with this condition with respect to the second motion to

dismiss,” the court should have denied defendant’s cross motion

seeking dismissal of the complaint (Shickler, 111 AD2d at 801). 

We reject defendant’s contention that a second 90-day demand was

not necessary because the court ordered that a note of issue be filed

by November 1, 2009 and then by November 24, 2009. While an order may

have the same effect as a valid 90-day demand, that order must advise

as to the consequences for failing to comply, i.e., dismissal of the

complaint (see Koscinski v St. Joseph’s Med. Ctr., 24 AD3d 421, 421-

422; see also Bort v Perper, 82 AD3d 692, 694). Here, there is no

indication that plaintiff was advised that his failure to file a note

of issue either by November 1st or November 24th would result in

dismissal of the complaint. 

With respect to appeal No. 2, plaintiff sought leave to renew and

reargue his spoliation motion and leave to reargue his opposition to

defendant’s cross motion, and in the alternative he sought relief

pursuant to CPLR 5015 (a) (1) and (3). Although plaintiff

characterized the motion as one seeking leave to renew and reargue, he

failed to present any new evidence and thus he sought only leave to

reargue, and it is well settled that no appeal lies from an order

denying a motion for leave to reargue (see Empire Ins. Co. v Food

City, 167 AD2d 983). Insofar as plaintiff also sought relief pursuant

to CPLR 5015 (a) (1) and (3), we need not address the propriety of any

request by plaintiff for relief pursuant to that statute in view of

our decision in appeal No. 1. 

Entered: October 7, 2011 Patricia L. Morgan

Clerk of the Court