Opinion
December 29, 1970
Appeal from an order of the Supreme Court at Special Term, entered in Albany County on July 13, 1970, which granted respondent's motion to restore the action to the Day Calendar. Respondent's notice of motion to remove the action from the Deferred Calendar to the Ready Calendar was served, concededly, prior to the expiration of one year. CPLR 2211 provides that notice motions are made when notice is served. Appellant's reliance upon McNamara v. Hutchinson ( 33 A.D.2d 26) is misplaced. In McNamara there was a failure to move to transfer the action from the Deferred Calendar prior to its automatic dismissal pursuant to the provisions of rule 2.17 of the Rules for Trial and Special Terms of Supreme Court, Third Judicial Department (22 NYCRR 861.17). The defendant herein (appellant) having failed to move for default judgment or cross-move for a dismissal for neglect to prosecute has no basis for an objection to the retransfer of the action as long as the plaintiff sets forth that the original reason for the transfer is now removed, to wit, he is "ready". Consequently, we conclude that since the motion was timely made within the year, the court had jurisdiction and properly exercised its discretion in granting the motion. Order affirmed, without costs. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.