HEIFETZ v. MIGUEL GODOY

Ordered that the order is affirmed, with costs.

Contrary to the defendant's contention, the compliance conference order dated September 14, 2004 could not be deemed a 90-day demand pursuant to CPLR 3216 since it gave the plaintiff's only 78 days within which to file the note of issue ( see Wollman v Berliner, 29 AD3d 786; Delgado v New York City Hous. Auth., 21 AD3d 522; Vasquez v Big Apple Constr. Corp., 306 AD2d 465). Furthermore, the subsequent order dated January 13, 2005 which extended the plaintiffs' deadline for filing a note of issue, was also insufficient to constitute a 90-day demand since it did not provide the required 90-day notice and failed to advise the plaintiff's that the failure to comply with the demand would serve as the basis for a motion to dismiss the action ( see Wollman v Berliner, supra; Delgado v New York City Hous. Auth., supra; O'Connell v City Wide Auto Leasing, 6 AD3d 682, 683). Accordingly, the Supreme Court properly granted the plaintiffs' motion to restore the action to the active calendar and to extend the time to file a note of issue and denied the defendant's cross motion pursuant to CPLR 3216 to dismiss the action.