We follow the new appellate decisions in the Case Prep Plus site.  Here is the full note on a case from this week entitled Harrison v Good Samaritan Hosp. Med. Ctr.    2007 NY Slip Op 06833
Decided on September 18, 2007 . Appellate Division, Second Department
:

"CIVIL PROCEDURE. CPLR 3126 NOTICE. FAILURE TO PROSECUTE. In this medical malpractice action, granting of plaintiff’s motion to vacate prior order dismissing the complaint, which was based upon defendant’s unopposed motion to dismiss for failure to prosecute, is affirmed. CPLR 3126 requires either the court or defendant to serve plaintiff with a written notice to resume prosecution within 90 days and that failing to do so will serve as a basis for a motion to dismiss. Here, because defendant’s notice only demanded that plaintiff resume prosecution of her action, the Supreme Court was without authority to dismiss the action under CPLR 3126. Harrison v. Good Samaritan Hospital Medical Center. [Editor’s comment: defense counsel might be subject to a legal malpractice claim should the case settle or result in a plaintiff’s verdict and judgment.]