CPLR R. 3404 not applicable when note of issue is vacated. And other stuff.

CPLR R. 3404 Dismissal of abandoned cases

Pucar v L.H. Charney Assoc., LLC2010 NY Slip Op 09489 (App. Div., 2nd 2010)

When the note of issue has been vacated, the case reverts to its pre-note of issue status, and CPLR 3404 is not applicable (see Lane v New York City Hous. Auth., 62 AD3d 961Andre v Bonetto Realty Corp., 32 AD3d 973, 974-975; Reitman v St. Francis Hosp., 2 AD3d 429, 430; Carte v Segall, 134 AD2d 396, 397). Accordingly, that branch of the plaintiffs' motion which was, in effect, to restore the action to active status should have been granted (see Lane v New York City Hous. Auth., 62 AD3d at 962; Hemberger v Jamaica Hosp., 306 AD2d 244; Badillo v Sheepshead Rest. Assoc., 296 AD2d 514, 515).

Mitskevitch v City of New York2010 NY Slip Op 08910 (App. Div., 2nd 2010)

The Supreme Court properly granted the plaintiff's motion to restore this action to the calendar. CPLR 3404 does not apply to this pre-note of issue case (see Dergousova v Long, 37 AD3d 645; Lucious v Rutland Nursing Home of Kingsbrook Jewish Med. Ctr., 2 AD3d 412; Lopez v Imperial Delivery Serv., 282 AD2d 190). Furthermore, there was no 90-day notice pursuant to CPLR 3216, nor was there an order dismissing the complaint pursuant to 22 NYCRR 202.27 (see Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510; Burdick v Marcus, 17 AD3d 388; 123X Corp. v McKenzie, 7 AD3d 769). Moreover, contrary to the appellant's contention, this action could not have properly been dismissed pursuant to CPLR 3126 based upon the plaintiff's failure to comply with court-ordered discovery, since there was no motion requesting this relief and the plaintiff was not afforded an opportunity to be heard on this issue (see CPLR 3124; 3126Xand Corp. v Reliable Sys. Alternatives Corp., 35 AD3d 849; Postel v New York Univ. Hosp., 262 AD2d 40, 42). 

Nasuro v PI Assoc., LLC2010 NY Slip Op 08717 (App. Div., 2nd 2010)

The action, however, was also marked off the trial calendar during court proceedings on November 13, 2006. Although the note of issue, which had been previously filed, was not vacated at that time, where, as here, an action has been marked off the trial calendar, and more than one year has passed without restoration of the action to the trial calendar, the action shall be deemed abandoned and shall be dismissed (seeCPLR 3404). A party seeking to vacate such a dismissal and restore such an action to the trial calendar must demonstrate four things: (1) a meritorious cause of action or defense, (2) a reasonable excuse for the delay in prosecuting the action, (3) a lack of intent to abandon the action, and (4) a lack of prejudice to the defendant (see Magnone v Gemm Custom Brokers, Inc., 17 AD3d 412; Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490; Borrelli v Maye, 293 AD2d 506; Schwartz v [*2]Mandelbaum & Gluck, 266 AD2d 273). All four components must be satisfied before the dismissal can be properly vacated and the action restored to the trial calendar (see Morgano v Man-Dell Food Stores, 259 AD2d 679).

Here, Maric did not move to restore the action to active status and, thereafter, to the trial calendar until February 24, 2009, more than two years after the action was marked off the trial calendar (cf. Kohn v Citigroup, Inc., 29 AD3d 530, 531-532). In making its motion, Maric failed to satisfy any of the requirements set forth above. Maric did not submit an affidavit of merit, failed to provide a reasonable excuse for the delay in moving, failed to sufficiently demonstrate a lack of intent to abandon the action, and failed to demonstrate a lack of prejudice to the opposing parties. Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of Maric's motion which was to restore the action to active status and, thereafter, to the trial calendar. 

 

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