Opinion
597
May 23, 2002.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about February 22, 2001, which denied plaintiff's motion to restore her action to the calendar pursuant to CPLR 3404, and granted defendant's cross motion to dismiss the action pursuant to CPLR 3404 and General Municipal Law § 50-h, unanimously reversed, on the law, without costs, the motion granted, the cross motion denied, and the complaint reinstated.
BRIAN J. ISAAC, for Plaintiff-appellant,
HERBERT RUBIN, for Defendant-respondent.
Williams, P.J., Nardelli, Tom, Lerner, Friedman, JJ.
Because no note of issue has been filed in this action, CPLR 3404 is not applicable, and the action cannot be deemed dismissed pursuant to that statute (see, Johnson v. Minskoff Sons, 287 A.D.2d 233). Neither does plaintiff's failure to submit to a physical examination as required by General Municipal Law § 50-h afford a basis for dismissal, since defendant took no steps to set a particular date on which to conduct such an examination (see, Ramos v. New York City Hous. Auth., 256 A.D.2d 195;Ruiz v. New York City Hous. Auth., 216 A.D.2d 258). While dismissal pursuant to CPLR 3126 may have been warranted based on plaintiff's alleged failure to provide other required disclosure, the cross motion granted by the IAS court did not invoke that statute.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.