Opinion
November 3, 2000.
Order, Supreme Court, New York County (Lorraine Miller, J.), entered February 2, 1999, which denied defendant-interpleader plaintiff Kleinberg, Kaplan, Wolff Cohen, P.C.'s ("KKWC") motion to restore the case to the court's calendar and to extend its time to file a note of issue, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the motion granted, and the case restored to the trial calendar. Appeal from order, same court and Justice, entered June 30, 1999, which denied KKWC's motion for leave to renew and reargue the foregoing motion, unanimously dismissed, without costs, as academic.
Edward P. Grosz, for plaintiff-appellant.
Francis M. Cryan, Kevin C. Logue, for defendants-respondents.
Before: Rosenberger, J.P., Williams, Lerner, Saxe, Buckley, JJ.
Under the circumstances, the motion court improvidently exercised its discretion in denying KKWC's motion to restore to the trial calendar its action to recover fees and costs arising from its performance as an escrow agent, and to extend its time to file a note of issue. There was no indication in the record of compliance with the CPLR 3216(b)(3) mandatory precondition that a written 90-day demand to file and serve a note of issue be served on plaintiffs prior to a dismissal for neglect to prosecute (Carino Italian Style v. Shammah, 266 A.D.2d 1; see also, Chase v. Scavuzzo, 87 N.Y.2d 228). Moreover, the court was mistaken as to the length of time KKWC's action had been pending and as to its diligence in prosecuting the action, and it failed to give due regard to other relevant factors, i.e., that KKWC had a meritorious case and had timely moved to restore the action to the calendar within a year of it being stricken (see, CPLR 3404), that the interpleader defendants failed to demonstrate any prejudice that would arise from the restoration of the case, and this State's strong public policy favoring disposition of actions on the merits (see,Mineroff v. R.H. Macys's Co., 97 A.D.2d 535; Moran v. Rynar, 39 A.D.2d 718; Bauer v. Claridge at Park Place, 181 A.D.2d 566).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.