Opinion
2003-02859.
Decided May 10, 2004.
In an action, inter alia, to recover damages for breach of a lease, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Davis, J.), dated February 25, 2003, which denied their motion to restore the action to active status.
David N. Sloan, Jericho, N.Y., for appellant.
Sonnenschein, Nath Rosenthal, LLP, New York, N.Y. (Allen G. Reiter and Stephen L. Brodsky of counsel), for respondents Coombes Properties, Inc., and Mario Blanco.
Ahmuty, Demers McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for respondents Incorporated Village of Freeport and Freeport Fire Department.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, SANDRA L. TOWNES, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with one bill of costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
The Supreme Court erred in denying the plaintiffs' motion to "restore" this action to active status. CPLR 3404 does not apply to this pre-note of issue action ( see Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 198). Furthermore, there was no 90-day demand to resume prosecution pursuant to CPLR 3216, and there was no order dismissing the complaint pursuant to 22 NYCRR 202.27. Accordingly, there was no basis to deny the plaintiffs' motion ( see Gendus v. Sheraton/Atlantic City W., 302 A.D.2d 427; Torres v. Nu-Way Mach. Corp. Co., 296 A.D.2d 545; Johnson v. Brooklyn Hosp. Ctr., 295 A.D.2d 567, 569; Farley v. Danaher Corp., 295 A.D.2d 559, 560).
RITTER, J.P., S. MILLER, TOWNES, CRANE and RIVERA, JJ., concur.