Opinion
2001-05457
Submitted March 6, 2002.
July 22, 2002.
In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated April 20, 2001, as granted that branch of the plaintiff's motion which was to "restore" the action and denied that branch of its cross motion which was to dismiss the complaint.
Chesney Murphy, LLP, Baldwin, N.Y. (Gregory E. Brower of counsel), for appellant.
William Pagan Associates, P.C., New York, N.Y. (Dylan Braverman of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, LEO F. McGINITY, BARRY A. COZIER, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Before a note of issue was filed, the case was marked "inactive" when the plaintiff failed to appear at a scheduled discovery conference. Since no note of issue had been filed, the action was not subject to dismissal pursuant to CPLR 3404 (see Murray v. Smith Corp., 286 A.D.2d 377; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190; P. Cubed Enters. v. Roach, 265 A.D.2d 537). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to "restore" the action and properly denied that branch of the defendant's cross motion which was to dismiss the complaint.
ALTMAN, J.P., SMITH, KRAUSMAN, McGINITY and COZIER, JJ., concur.