Opinion
Submitted January 31, 2001.
May 29, 2001.
In an action to recover damages for breach of contract and professional malpractice, the defendant Shanholt, Marinoff, Fleiss Co., appeals from an order of the Supreme Court, Queens County (Milano, J.), entered April 14, 2000, which denied its motion to dismiss the action pursuant to CPLR 3404 for neglect to prosecute.
D'Amato Lynch, New York, N.Y. (Peter A. Stroili of counsel), for appellant.
Bangser Klein Rocca Blum, LLP, New York, N.Y. (Jonathan J. Fink of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, DANIEL F. LUCIANO and HOWARD MILLER, JJ.
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.