The plaintiff moved to restore this action to the calendar after it was, in effect, dismissed pursuant to CPLR 3216 for failure to file a timely note of issue pursuant to a compliance order dated April 15, 2008. Notably, the compliance order specifically advised that it did not constitute a CPLR 3216 notice. Thus, the order could not be deemed a 90-day demand to file a note of issue, which is a precondition to dismissal under CPLR 3216 (see CPLR 3216 [b] [3]; Ratway v Donnenfeld, 43 AD3d 465 [2007]; Heifetz v Godoy, 38 AD3d 605 [2007]; Murray v Smith Corp., 296 AD2d 445, 447 [2002]). Accordingly, the plaintiffâs motion to restore the action to the calendar should have been granted.
Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.