Dokaj v. Ruxton Tower Limited Partnership

Appellate Division of the Supreme Court of New York

Dokaj v. Ruxton Tower Limited Partnership

55 A.D.3d 661, 865 N.Y.S.2d 653

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 14, 2008

StatusPublished

Cited by12 cases

This text of 55 A.D.3d 661 (Dokaj v. Ruxton Tower Limited Partnership) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dokaj v. Ruxton Tower Limited Partnership, 55 A.D.3d 661, 865 N.Y.S.2d 653 (N.Y. Ct. App. 2008).

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Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated January 26, 2007, as denied their motion, in effect, to vacate the automatic dismissal of the action pursuant to CPLR 3404.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion, in effect, to vacate the automatic dismissal of the action pursuant to CPLR 3404 is granted.

In an order dated May 9, 2000, issued after the plaintiffs filed a note of issue, the Supreme Court granted motions to compel certain discovery. In so doing, the court indicated that because “discovery had not been completed,” the note of issue was “stricken,” and could be “re-file[d]” upon the completion of discovery. However, the note of issue was never re-filed.

On May 10, 2000 the action was stricken from the trial calendar. One year later the action was automatically dismissed pursuant to CPLR 3404.

When an action is stricken from the trial calendar as a result [662]*662of the vacatur of the note of issue, the action returns to prenote of issue status (see Galati v C. Raimondo & Sons Constr. Co., Inc., 35 AD3d 805, 806 [2006]; Travis v Cuff, 28 AD3d 749, 750 [2006]). Since CPLR 3404 is inapplicable in an action in pre-note of issue status, that statute did not provide a basis for the dismissal of the action (see Galati v C. Raimondo & Sons Constr. Co., Inc., 35 AD3d at 806; Travis v Cuff, 28 AD3d 749, 750 [2006]).

Thus, the instant action was improperly dismissed pursuant to CPLR 3404. Under these circumstances, the plaintiffs should not have been required to move to vacate the dismissal of the action (cf. Andre v Bonetto Realty Corp., 32 AD3d 973, 975 [2006]; Travis v Cuff, 28 AD3d 749, 750 [2006]). Skelos, J.P., Covello, Balkin and Dickerson, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated January 26, 2007, as denied their motion, in effect, to vacate the automatic dismissal of the action pursuant to CPLR 3404.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion, in effect, to vacate the automatic dismissal of the action pursuant to CPLR 3404 is granted.

In an order dated May 9, 2000, issued after the plaintiffs filed a note of issue, the Supreme Court granted motions to compel certain discovery. In so doing, the court indicated that because “discovery had not been completed,” the note of issue was “stricken,” and could be “re-file[d]” upon the completion of discovery. However, the note of issue was never re-filed.

On May 10, 2000 the action was stricken from the trial calendar. One year later the action was automatically dismissed pursuant to CPLR 3404.

When an action is stricken from the trial calendar as a result [662]*662of the vacatur of the note of issue, the action returns to prenote of issue status (see Galati v C. Raimondo & Sons Constr. Co., Inc., 35 AD3d 805, 806 [2006]; Travis v Cuff, 28 AD3d 749, 750 [2006]). Since CPLR 3404 is inapplicable in an action in pre-note of issue status, that statute did not provide a basis for the dismissal of the action (see Galati v C. Raimondo & Sons Constr. Co., Inc., 35 AD3d at 806; Travis v Cuff, 28 AD3d 749, 750 [2006]).

Thus, the instant action was improperly dismissed pursuant to CPLR 3404. Under these circumstances, the plaintiffs should not have been required to move to vacate the dismissal of the action (cf. Andre v Bonetto Realty Corp., 32 AD3d 973, 975 [2006]; Travis v Cuff, 28 AD3d 749, 750 [2006]). Skelos, J.P., Covello, Balkin and Dickerson, JJ., concur.

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55 A.D.3d 661, 865 N.Y.S.2d 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dokaj-v-ruxton-tower-limited-partnership-nyappdiv-2008.

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