154 AD3d 795
N.Y. App. Div. 2nd
2017

US Bank National Association, as Trustee, Respondent, v Miguel Madero et al., Appellants, et al., Defendants.

Appellate Division, Second Department, New York

October 11, 2017

2017 NY Slip Op 07156 | 154 AD3d 795

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 29, 2017

DeGuerre Law Firm, P.C., Staten Island, NY (Anthony DeGuerre of counsel), for appellants.

Hogan Lovells US LLP, New York, NY (Lisa J. Fried, Chava Brandriss, and Ryan Sirianni of counsel), for respondent.

Appeal by the defendants Miguel Madero and Martha Madero from an order of the Supreme Court, Richmond County (Desmond A. Green, J.), dated November 14, 2016. The order, insofar as appealed from, granted that branch of the plaintiff‘s motion which was to restore the action to the active calendar.

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

The Supreme Court properly granted that branch of the plaintiff‘s motion which was to restore the action to the active calendar. CPLR 3404 does not apply to this pre-note of issue action (see WM Specialty Mtge., LLC v Palazzollo, 145 AD3d 714, 715 [2016]; Countrywide Home Loans, Inc. v Gibson, 111 AD3d 875, 875-876 [2013]; Rakha v Pinnacle Bus Servs., 98 AD3d 657, 658 [2012]; Lopez v Imperial Delivery Serv., 282 AD2d 190, 198 [2001]). Further, there was neither a 90-day notice pursuant to CPLR 3216, nor an order dismissing the complaint pursuant to 22 NYCRR 202.27 (see Arroyo v Board of Educ. of City of N.Y., 110 AD3d 17 [2013]; Rakha v Pinnacle Bus Servs., 98 AD3d at 658).

The appellants’ remaining contention is without merit. Rivera, J.P., Hall, Roman and Christopher, JJ., concur.