Davila v. Galarza

1 Citing case

  1. Murray v. T.W. Smith Corp.

    296 A.D.2d 445 (N.Y. App. Div. 2002)   Cited 18 times

    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).