Opinion
5371N
December 13, 2001.
Order, Supreme Court, New York County (Robert Lippmann, J.), entered March 22, 2001, which denied petitioner's motion to restore the action to the trial calendar, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the motion granted, and the matter remanded for further proceedings.
Steven D. Brower, for petitioner-appellant.
Martin C. Julius, for respondent-respondent.
Before: Nardelli, J.P., Williams, Mazzarelli, Lerner, Friedman, JJ.
Petitioner's failure to file a timely note of issue should not have served as a basis for the court's denial of the motion to restore. There is no indication in the record that the second note of issue, filed August 23, 2000, was rejected for petitioner's failure to file it in a timely fashion. Moreover, respondent never moved to strike the note of issue at any time after it was filed late. The record lacks evidence that petitioner's failure to file a timely note of issue resulted in the dismissal of the action on September 18, 2000. Instead, the matter was dismissed for the litigants' failure to appear at a preliminary conference on the aforementioned date. This non-appearance was seemingly attributable to the fact that the parties, particularly petitioner, had been advised by the court that the matter would be taken off the preliminary conference calendar and a framed issue hearing scheduled. Inasmuch as the dismissal of the action was not attributable to any omissions or default on the part of petitioner, the motion should be granted and the matter restored to the trial calendar.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.