Dorazio v. Delbene

Feb 20, 2007
Versions:37 A.D.3d 645
830 N.Y.S.2d 329

In an action to recover damages for personal injuries and injury to property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated August 18, 2005, as granted that branch of the plaintiffs’ motion which was to restore the action to the active calendar and denied their cross motion pursuant to CPLR 3404 to dismiss the action for neglect to prosecute.

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

Contrary to the defendants’ contention, there is no evidence in the record that this case was dismissed due to the plaintiffs’ failure to appear at a compliance conference (see 22 NYCRR 202.27; Grant v County of Nassau, 28 AD3d 714 [2006]; Klevanskaya v Khanimova, 21 AD3d 350 [2005]; Johnson v Brooklyn Hosp. Ctr., 295 AD2d 567, 569 [2002]). Furthermore, CPLR 3404 does not apply to this pre-note of issue action (see Lopez v Imperial Delivery Serv., 282 AD2d 190 [2001]), and there was no 90-day notice pursuant to CPLR 3216. Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was to restore the action to the active calendar after it had been “marked off” (see Andre v Bonetto Realty Corp., 32 AD3d 973 [2006]; Klevanskaya v Khanimova, supra; Burdick v Marcus, 17 AD3d 388 [2005]), and the Supreme Court properly denied the defendants’ cross motion pursuant to CPLR 3404 to dismiss the action for neglect to prosecute.

The defendants’ remaining contentions are without merit. Rivera, J.P., Spolzino, Fisher, Lifson and Dickerson, JJ., concur.