Opinion
1330
June 11, 2002.
Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about May 7, 2001, which granted plaintiff's motion to restore the action to the compliance calendar, unanimously affirmed, without costs.
BRIAN J. ISAAC, for Plaintiff-Respondent.
MICHAEL I. JOSEPHS, for Defendants-Appellants.
Nardelli, J.P., Mazzarelli, Buckley, Sullivan, Marlow, JJ.
Since no note of issue has been filed in this case, defendants, or the court, could have sered a 90-day demand to file a note of issue pursuant to CPLR 3216. A motion to dismiss pursuant to CPLR 3404, however, applies only to delay after anote of issue has been filed (see, Johnson v. Sam Minskoff Sons, Inc., 287 A.D.2d 233;Lopez v. Imperial Delivery, 282 A.D.2d 190, lv dismissed 96 N.Y.2d 937). Under the circumstances, we perceive no reason to disturb the motion court's exercise of discretion in restoring the case to the court's compliance calendar.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.