Opinion
2671, 2672
June 10, 2003.
Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about June 30, 2000, which, insofar as appealable, denied plaintiff's motion to renew the prior order, same court and Justice, entered on or about March 17, 2000, granting defendant's motion pursuant to CPLR 3404 to dismiss the action as abandoned and which denied plaintiff's motion to restore the action to the calendar, unanimously reversed, on the law and the facts, without costs, to grant renewal, and upon renewal, defendant's motion denied, the order of dismissal vacated, and the complaint reinstated. Appeal from the March 17, 2000 order, unanimously dismissed as academic, without costs.
Laurence S. Warshaw, for plaintiff-appellant.
Gary H. Forman, for defendant-respondent.
Christopher A. South, for third-party defendant-respondent.
Before: Tom, J.P., Andrias, Rosenberger, Friedman, Marlow, JJ.
The court lacked statutory authority to deny plaintiff's motion to restore the action to active status or to dismiss the case pursuant to CPLR 3404. As we have recently stated, section 3404 applies only to cases for which a note of issue has been filed (Johnson v. Minskoff Sons, 287 A.D.2d 233; see also Lopez v. Imperial Delivery Service, 282 A.D.2d 190, lv denied 96 N.Y.2d 937; Wachter v. City of New York, 300 N.Y.S.2d 129; Hecker v. Allstate Life Ins. Co., 298 A.D.2d 325). Although the June 30, 2000 order pre-dated our Johnson ruling, nevertheless it remains procedurally defective. Moreover, insofar as the action was improperly dismissed, there was no basis to deny plaintiff's motion to restore (Antoniadis v. Stamatopoulos, 300 A.D.2d 84).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.