Barbu v. Savescu

49 A.D.3d 678, 856 N.Y.2d 629

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2008
• Status: Published

Opinion

The Supreme Court properly denied that branch of the appellants’ motion which was pursuant to CFLR 3216 to dismiss the complaint insofar as asserted against them. The plaintiffs filed a timely note of issue and there is no indication in the record that the note of issue was ever vacated. Relief pursuant to CPLR 3216 is no longer available based on a plaintiffs unreasonable neglect to proceed or delay in the prosecution of an action after the filing of the note of issue (see Chase v Scavuzzo, 87 NY2d 228, 231, 233 [1995]; Ballestero v Haf Edgecombe Assoc., L.P., 33 AD3d 952, 953 [2006]; Basetti v Nour, 287 AD2d 126, 128 [2001]; Lopez v Imperial Delivery Serv., 282 AD2d 190, 194 [2001]).

Furthermore, the Supreme Court properly denied that branch of the appellants’ motion which was pursuant to CPLR 3404 to dismiss the complaint insofar as asserted against them. There was no proof that the action was marked “off” the calendar as that term is used in CPLR 3404. The issuance of a stay of the action was not the equivalent of marking the case “off’ the calendar (see Ballestero v Haf Edgecombe Assoc., L.P., 33 AD3d at 953; see generally Basetti v Nour, 287 AD2d at 132-133). Fisher, J.P., Florio, Angiolillo, Dickerson and Belen, JJ., concur. [See 2007 NY Slip Op 30578(U).]