Opinion
1298N
October 31, 2002.
Order, Supreme Court, New York County (Barbara Kapnick, J.), entered September 15, 2001, which denied plaintiff's motion for an order restoring his case to the calendar and extending his time to file a note of issue, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted.
JANESE N. THOMPSON, for plaintiff-appellant.
ROBIN MARY HEANEY, for defendants-respondents.
Before: Mazzarelli, J.P., Lerner, Rubin, Marlow, Gonzalez, JJ.
Defendants failed to timely submit proof that they served a copy of the order at issue with notice of entry upon plaintiff more than 30 days prior to the service of the notice of appeal (CPLR 5513[a]). In the absence of such timely proof, this Court will not assume that the appeal is untimely (see Bowne of New York, Inc. v. Int'l 800 Telecom Corp., 178 A.D.2d 138).
Inasmuch as plaintiff never filed a note of issue, CPLR 3404 was inapplicable as a basis for the court to mark the case off the calendar (see Jiles v. New York City Transit Authority, 290 A.D.2d 307;Johnson v. Minskoff Sons, 287 A.D.2d 233, 234; Lopez v. Imperial Delivery Service, Inc., 282 A.D.2d 190, 199, lv dismissed 96 N.Y.2d 937). As there was no other appropriate basis to mark the case off the calendar, the court should have granted plaintiff's motion (id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.