It is undisputed that there was no note of issue filed in this action. Since it is now well settled that CPLR 3404 may not be applied to pre-note of issue cases (see Wasilewicz v. Village of Monroe Police Dept., 288 A.D.2d 377, 378; Zanani v. Savad, 286 A.D.2d 386, 387; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 198-199), the Supreme Court should have denied those branches of the cross motions which were to dismiss the action pursuant to CPLR 3404 (see London v. Iceland Inc., 288 A.D.2d 355; Davila v. Galarza, 221 A.D.2d 308; cf. Georgetown Mews Owners Corp. v. Campus Assocs., 283 A.D.2d 608). Furthermore, the Supreme Court should have granted the plaintiffs' motion to restore without requiring them to meet the standards applicable to a party seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404, since there was no authority to mark it off in the first place (see Cioffi v. Kennedy, 284 A.D.2d 491, 492; see also Wasilewicz v. Village of Monroe Police Dept., supra at 378; Zanani v. Savad, supra at 387).
Plaintiff appeals. We hold, in accord with the Second Department's decision in Lopez v. Imperial Delivery Serv. (supra) and the First Department's recent pronouncement in Johnson v. Minskoff Sons ( 287 A.D.2d 233 [Dec. 20, 2001]), that CPLR 3404 is not applicable to cases in which no note of issue has been filed (see also, Wasilewicz v. Village of Monroe Police Dept., 288 A.D.2d 377, 378, 734 N.Y.S.2d 81, 82; Davila v. Galarza, 221 A.D.2d 308, 308). To the extent that this Court's prior decision in Marine Midland Bank-Eastern Natl. Assn. v. Safari Animal Country (supra) compels a contrary result, it should not be followed.
Contrary to the appellant's contention, the respondent was not required to meet the standards applicable to a party seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404. Since there is no evidence that a note of issue placing the action on the trial calendar was filed (see, CPLR 3402), the action could not be dismissed pursuant to CPLR 3404 (see, Georgetown Mews Owners Corp. v. Campus Assocs., A.D.2d [2d Dept., May 29, 2001]; Lopez v. Imperial Delivery Serv., A.D.2d [2d Dept., May 14, 2001; P. Cubed Enters. v. Roach, 265 A.D.2d 537; Davila v. Galarza, 221 A.D.2d 308). Therefore, the Supreme Court properly granted that branch of the plaintiff's motion which was to restore the action.
ORDERED that the order is affirmed, with costs. Since there is no evidence that a note of issue placing the action on the court's trial calendar was filed (see, CPLR 3402), the court properly denied the appellant's motion to dismiss the action pursuant to CPLR 3404 (see, Lopez v. Imperial Delivery Serv., A.D.2d [2d Dept., May 14, 2001]; P. Cubed Enters. v. Roach, 265 A.D.2d 537, 538; Davila v. Galarza, 221 A.D.2d 308). SANTUCCI, J.P., ALTMAN, LUCIANO and H. MILLER, JJ., concur.
There are two lines of cases in this court applying CPLR 3404 to pre-note of issue cases. In the first line of cases, this court has properly held that CPLR 3404 is inapplicable to pre-note of issue cases (see, Cubed Enters. v. Roach, 265 A.D.2d 537, supra; Davila v. Galarza, 221 A.D.2d 308). The second line of cases in this court and in the other Appellate Divisions, however, have applied CPLR 3404 to pre-note of issue situations such as failure to appear at a preliminary conference and a pretrial conference (see, Lieber v. Vitelli, 270 A.D.2d 396; Cyrus v. Dorazio, 269 A.D.2d 419; Soto v. Ortiz, 254 A.D.2d 347; Stonehill Publ. v. Clancy-Cullen Stor. Co., 251 A.D.2d 25; Boger v. City of New York, 233 A.D.2d 182; Marine Midland Bank-E. Natl. Assoc. v. Safari Animal Country, 110 A.D.2d 1024).
Since no note of issue placing the action on the court's calendar was filed (see, CPLR 3402), the court incorrectly dismissed the action pursuant to CPLR 3404. The correct procedure to dismiss the action required a motion pursuant to CPLR 3216 (see, Davila v. Galarza, 221 A.D.2d 308). As no demand to file a note of issue within 90 days was served, dismissal under CPLR 3216 would also have been improper.
Accordingly, the Supreme Court erred in dismissing the instant action on the ground that it had been abandoned (see, Matter of Horton, 51 A.D.2d 856). The defendants' reliance on CPLR 3404 is without merit (see, Davila v Galarza, 221 A.D.2d 308; Beltrani v Mirabile, 141 A.D.2d 688). Accordingly, the complaint must be reinstated against the defendants Karl Moeller and Acoustics, and Karl Moeller and Mary Moeller are directed to appear for depositions.