Opinion
January 31, 1994
Appeal from the Supreme Court, Westchester County (Ingrassia, J.).
Ordered that the appeal from the order entered June 27, 1991, is dismissed, as that order was superseded by the order entered October 3, 1991, made upon reargument; and it is further,
Ordered that the order entered October 3, 1991, is reversed insofar as appealed from, on the law, the order entered June 27, 1991, is vacated, and the respondent's motion to vacate the note of issue is denied; and it is further,
Ordered that the appellant is awarded one bill of costs.
The appellant served and filed a note of issue in November 1990 for a hearing to determine the value of certain property appropriated by the respondent, Village of Tarrytown. The appellant's right to such a hearing was established in a judgment of the Supreme Court, Westchester County, entered December 11, 1981, which was unsuccessfully appealed by the Village (see, Woodland Lake Estates v. Village of Tarrytown, 97 A.D.2d 338). After the note of issue was filed, the Village moved to vacate the note of issue and to dismiss the matter based on the appellant's alleged abandonment of its right to a valuation hearing.
We find that the Supreme Court erred in granting the motion, as the Village failed to serve a 90-day demand to resume prosecution pursuant to CPLR 3216 (b) (see, Cohn v. Borchard Affiliations, 25 N.Y.2d 237; Flushing Natl. Bank v. Carat Contr. Co., 176 A.D.2d 783). Moreover, since the appellant filed its note of issue before a 90-day demand to resume prosecution was served, the matter may not be dismissed based on the appellant's delay prior to filing its note of issue (see, CPLR 3216 [d]; Thompson v Thompson, 103 A.D.2d 772).
Finally, we note that CPLR 3404 is inapplicable here (see, Flushing Natl. Bank v. Carat Contr. Co., supra). Miller, J.P., O'Brien, Ritter and Krausman, JJ., concur.