Varricchio v. Sterling

Jul 5, 2011
Versions:86 A.D.3d 535
926 N.Y.S.2d 320
926 N.Y.2d 320

On July 16, 2008, this pre-note of issue action was marked “other final disp.” after the parties failed to appear for a compliance conference. CPLR 3404 does not apply to this pre-note of issue action (see Mitskevitch v City of New York, 78 AD3d 1137, 1138 [2010]; Lopez v Imperial Delivery Serv., 282 AD2d 190, 199 [2001]). Furthermore, there was neither a 90-day notice pursuant to CPLR 3216, nor an order dismissing the complaint pursuant to 22 NYCRR 202.27 (see Mitskevitch v City of New York, 78 AD3d at 1138; Casavecchia v Mizrahi, 62 AD3d 741, 742 [2009]; Burdick v Marcus, 17 AD3d 388 [2005]; 123X Corp. v McKenzie, 7 AD3d 769 [2004]). Accordingly, that branch of the plaintiff‘s motion which was to restore the action to active status should have been granted.

Skelos, J.P., Dickerson, Hall, Austin and Miller, JJ., concur.