Opinion
2769N
January 9, 2003.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about August 15, 2001, which denied plaintiff's motion to, inter alia, restore this action to active status, unanimously reversed, on the law, without costs, the motion granted to the extent of restoring the matter to the active pre-note of issue calendar, and the matter remanded for further proceedings.
Philip D. Marin, for Plaintiff-Appellant.
Ronald E. Sternberg, for Defendants-Respondents.
Buckley, J.P., Ellerin, Lerner, Friedman, Marlow, JJ.
As conceded by defendant, the motion court erred in denying plaintiff's motion to restore the action to active status. Since no note of issue had been filed, the court had no authority to dismiss the action pursuant to CPLR 3404 and plaintiff's motion to restore the case to active status should have been granted (Jiles v. New York City Tr. Auth., 290 A.D.2d 307; see also Pearl v. City of New York, 293 A.D.2d 406;Koutsoupakis v. City of New York, 292 A.D.2d 191; Johnson v. Sam Minskoff Sons, 287 A.D.2d 233).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.