DELGADO v. NEW YORK CITY HOUSING AUTHORITY

Ordered that the order is affirmed, with costs.

A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met ( see Baczkowski v. Collins Constr. Co., 89 NY2d 499, 502-503; Akpinar v. John Hancock Mut. Life Ins. Co., 302 AD2d 337; Murray v. Smith Corp., 296 AD2d 445, 447; Schwartz v. Nathanson, 261 AD2d 527). The compliance conference order dated January 7, 2003, could not be deemed a 90-day demand pursuant to CPLR 3216 because it gave the plaintiff only 87 days within which to file the note of issue ( see Vasquez v. Big Apple Constr. Corp., 306 AD2d 465; Beepat v. James, 303 AD2d 345; Halali v. Evanston Ins. Co., 288 AD2d 260, 261). Furthermore, the subsequent so-ordered stipulation between the parties dated December 19, 2003, which extended the plaintiff's deadline for filing a note of issue until February 16, 2004, was also insufficient to constitute a 90-day demand since it did not provide the required 90-day notice and it failed to advise the plaintiff that the failure to comply with the demand would serve as the basis for a motion to dismiss the action ( see O'Connell v. City Wide Auto Leasing, 6 AD3d 682; Akpinar v. John Hancock Mut. Life Ins. Co., 302 AD2d 337; Murray v. Smith Corp., 296 AD2d 445). Because the compliance conference order and the so-ordered stipulation did not meet the statutory preconditions pursuant to CPLR 3216, there was a failure of a condition precedent, and the court was not authorized to dismiss the action on its own motion ( see Schwartz v. Nathanson, supra; cf. Vinikour v. Jamaica Hosp., 2 AD3d 518). Accordingly, the plaintiff's motion, in effect, to vacate the dismissal of the action was properly granted.