Opinion
435N, 436N
March 11, 2003.
Order, Supreme Court, New York County (Robert Lippmann, J.), entered January 24, 2001, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion "to restore this matter to active status on the Court's docket," unanimously reversed, on the law, without costs, the motion granted, and the court directed to entertain further proceedings. Appeal from order, same court and Justice, entered on or about August 23, 2001, which, insofar as appealable, denied plaintiff's motion to renew, unanimously dismissed, without costs, as academic.
Brian J. Isaac, for plaintiff-appellant.
Larry A. Sonnenshein, for defendants-respondents.
Before: Saxe, J.P., Sullivan, Lerner, Gonzalez, JJ.
"[M]arking a case off a pre-note of issue calendar is simply not a penalty available to the court when the plaintiff fails to appear at a pre-note of issue conference or other pre-note of issue proceeding." (Jiles v. New York City Tr. Auth., 290 A.D.2d 307 .) Defendants commendably concede that the court erred in denying plaintiff's motion to restore this pre-note case to active status. Plaintiff's motion to restore the action to "active status" should have been granted "since there was never any authority to put it in inactive status in the first place" (id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.