Kallicharan v. Coombes Properties, Inc.

May 10, 2004
Versions:7 A.D.3d 578
775 N.Y.S.2d 911

*579In an action, inter alia, to recover damages for breach of a lease, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Davis, J.), dated February 25, 2003, which denied their motion to restore the action to active status.

Ordered that the order is reversed, on the law, with one bill of costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

The Supreme Court erred in denying the plaintiffs’ motion to “restore” this action to active status. CPLR 3404 does not apply to this pre-note of issue action (see Lopez v Imperial Delivery Serv., 282 AD2d 190, 198 [2001]). Furthermore, there was no 90-day demand to resume prosecution 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 plaintiffs’ motion (see Gendus v Sheraton/Atlantic City W., 302 AD2d 427 [2003]; Torres v Nu-Way Mach. Corp. Co., 296 AD2d 545 [2002]; Johnson v Brooklyn Hosp. Ctr., 295 AD2d 567, 569 [2002]; Farley v Danaher Corp., 295 AD2d 559, 560 [2002]). Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.