Appellate Division of the Supreme Court of the State of New York October 3, 2012 (Guerrera v. Zysk)

On May 5, 2010, the defendant served the plaintiff with a *661written demand pursuant to CPLR 3216 to serve and file a note of issue within 90 days after receipt of the demand. Shortly thereafter, the defendant served a notice of motion dated May 5, 2010, inter alia, pursuant to CPLR 3216, in effect, to dismiss the complaint for failure to prosecute.