SOLIS v. MARY IMMACULATE HOSPITAL

Ordered that the order is affirmed insofar as appealed from, with costs.

Citing the plaintiff's alleged failure to prosecute this action, the appellant moved to dismiss (see, CPLR 3216). However, no 90-day demand to file a note of issue was served upon the plaintiff prior to the defendant's motion (see, CPLR 3216 [b] [3]). Under such circumstances, the Supreme Court properly denied the motion (see, Airmont Homes v Town of Ramapo, 69 N.Y.2d 901; Bauernfeind v Albany Med. Center Hosp., 154 A.D.2d 754; Ciminelli Constr. Co. v City of Buffalo, 110 A.D.2d 1075; see also, 4 Weinstein-Korn-Miller, N Y Civ Prac ¶ 3216.07). Thompson, J.P., Kunzeman, Eiber, Rosenblatt and Ritter, JJ., concur.