Opinion
Submitted February 21, 2001.
August 13, 2001.
In an action to recover damages for personal injuries, the third-party defendant Esab Group, Inc., d/b/a L-Tec Welding Cutting Systems, Inc., appeals from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated May 25, 2000, as granted that branch of the plaintiffs' motion which was to restore the action.
Barry, McTiernan Moore, New York, N.Y. (Laurel A. Wedinger of counsel), for third-party defendant-appellant.
O'Keeffe Lindgren, LLP, White Plains, N.Y. (Thomas K. Lindgren of counsel), for respondents.
Before: LAWRENCE J. BRACKEN, P.J., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in restoring this action. Since no note of issue had been filed, this action could not be dismissed pursuant to CPLR 3404 (see, Lopez v. Imperial Delivery Service, A.D.2d [2d Dept., May 14, 2001]; P. Cubed Enterprises v. Roach, 265 A.D.2d 537), and the appellant did not demonstrate any other basis for dismissal.
BRACKEN, P.J., S. MILLER, McGINITY and SCHMIDT, JJ., concur.