Opinion
September 25, 1995
Appeal from the Supreme Court, Kings County (Levine, J.).
Ordered that the amended order is reversed insofar as appealed from, on the law, with costs, the defendant's cross motion to dismiss the complaint is denied, and the complaint is reinstated.
On July 8, 1993, the defendant served the plaintiff with notice pursuant to CPLR 3216 to serve and file a note of issue within 90 days. By notice of motion dated September 27, 1993, the defendant cross-moved to dismiss the action for failure to prosecute. Since the cross motion to dismiss was served before the expiration of the 90-day period, the Supreme Court lacked jurisdiction to entertain the cross motion (see, Lyons v Butler, 134 A.D.2d 576; Genovese v Kogel Materials Corp., 61 A.D.2d 820). Accordingly, the Supreme Court erred by granting the defendant's cross motion to dismiss the action for failure to prosecute. Sullivan, J.P., Miller, Copertino, Joy and Friedmann, JJ., concur.