Opinion
885
April 25, 2002.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered January 29, 2001, which granted defendants' motions pursuant to CPLR 3404 to dismiss the action as abandoned, unanimously reversed, on the law, without costs, the motions denied, the complaint reinstated and the matter remanded for further proceedings.
Richard A. Ashman, for plaintiff-appellant.
Ellen Ravitch, for defendants-respondents.
Before: Nardelli, J.P., Buckley, Rosenberger, Ellerin, Rubin, JJ.
As conceded by defendant, the complaint cannot be dismissed pursuant to CPLR 3404 since, as established by case law rendered after entry of the order on appeal, the note of issue had not yet been filed (see, Koutsoupakis v. City of New York, 292 A.D.2d 191, 2002 N.Y. App. Div. LEXIS 2364, citing, inter alia, Johnson v. Minskoff Sons, 287 A.D.2d 233, 735 N.Y.S.2d 503 [1st Dept, Dec 20, 2001]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.