Gendus v. Sheraton / Atlantic City West

Feb 10, 2003
Versions:302 A.D.2d 427
754 N.Y.S.2d 895

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Mason, J.), dated January 7, 2002, as denied her motion to “restore” the action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

The Supreme Court erred in denying the plaintiff’s motion to “restore” this action. The motion was made approximately four months after the action was marked off or deemed inactive due to the plaintiff’s failure to appear at a duly-scheduled status conference. CPLR 3404 does not apply to this prenote of issue action (see Lopez v Imperial Delivery Serv., 282 AD2d 190), there was no 90-day notice pursuant to CPLR 3216, and there was no order dismissing the complaint pursuant to 22 NYCRR 202.27. Accordingly, there was no basis to deny the plaintiff’s motion (see Torres v Nu-Way Mach. Corp. Co., 296 AD2d 545; Johnson v Brooklyn Hosp. Ctr., 295 AD2d 567; Farley v Danaher Corp., 295 AD2d 559). Altman, J.P., Smith, Luciano, Adams and Cozier, JJ., concur.