Nor did the plaintiff seek such relief in opposition to appellants' motion to strike the note of issue (see CPLR 2215). Since plaintiff took no action to vacate the automatic dismissal of October 16, 1981 and the judgment of dismissal entered December 8, 1981, there was no case pending as of December 9, 1981, the date plaintiff filed a note of issue, and the motion to strike should have been granted (see Roberts v. Ryan Homes, 78 A.D.2d 584; Campbell v. Puntoro, 36 A.D.2d 568). The sua sponte vacatur of the judgment of dismissal was error.