CPLR R. 3404

An action may be dismissed for want of prosecution pursuant to
either CPLR 3216 or CPLR 3404. The procedural mechanism for dismissal
for want of prosecution depends on whether a note of issue has been
filed (see Lopez v Imperial Delivery Serv., 282 AD2d 190). CPLR 3404 does not apply to pre-note of issue actions and cannot provide a basis for dismissal of such actions (see Sellitto v Women's Health Care Specialists, 58 AD3d 828; Dokaj v Ruxton Tower Ltd. Partnership, 55 AD3d 661; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d 750; Lopez v Imperial Delivery Serv., 282
AD2d at 199). In actions such as this, where a note of issue has not
been filed, CPLR 3216 provides the procedural mechanism for dismissal
for want of prosecution (see Baczkowski v Collins Constr. Co., 89 NY2d 499; Sellitto v Women's Health Care Specialists, 58 AD3d 828; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d at 751; Delgado v New York City Hous. Auth., 21 AD3d 522), provided certain statutory prerequisites are met (see CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499; Sellitto v Women's Health Care Specialists, 58 AD3d 828; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d at 751; Delgado v New York City Hous. Auth., 21
AD3d at 523). Here, the defendant established that the clerk erred by
marking the case disposed. In opposition, the plaintiffs failed to
establish that they timely served a 90-day notice demanding that the
defendant resume prosecution of the counterclaims or risk their
dismissal (see CPLR 3216[b]). Absent proof of compliance with
CPLR 3216 (b), it was error to deny the defendant's motion to restore
the counterclaims to the calendar (see Baczkowski v Collins Constr. Co., 89 NY2d at 503; Delgado v New York City Hous. Auth., 21 AD3d 522).

As noted above, the Supreme Court denied the defendant's motion,
in effect, directed the dismissal of the defendant's counterclaims, and
did not determine the merits of those branches of the defendant's
motion which were for summary judgment on the first and fourth
counterclaims. Under the circumstances, and in the interest of judicial
economy, we determine the merits of those branches of the defendant's
motion (see Mobil Oil Corp. v Christian Oil & Gas Distribs., 95 AD2d 772, 773; Osserman v Osserman, 92 AD2d 932, 933).
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