Lourim v. Keystone Shipping Co.

302 A.D.2d 313, 754 N.Y.S.2d 873

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 2003
• Status: Published

Opinion

(And a Third-Party Action.) Order, Supreme Court, New York County (Louis York, J.), entered on or about November 15, 2001, which denied plaintiffs motion to vacate the dismissal of the case pursuant to CPLR 3404 and restore it to the calendar, unanimously reversed, on the law, without costs, the dismissal vacated and the case restored to the calendar.

Plaintiffs motion to restore his case was denied on the ground that he failed to establish a reasonable excuse for the delay in completing discovery and filing a note of issue, a criterion for restoration of a case marked off calendar pursuant to CPLR 3404 (see Werner v Tiffany & Co., 291 AD2d 305 [2002]). However, the very fact that no note of issue was filed renders CPLR 3404 inapplicable to this case (Johnson v Minskoff & Sons, 287 AD2d 233 [2001]). Dismissal of prenote of issue cases for want of prosecution is governed by CPLR 3216 (id.). We note in that connection that plaintiff was never served with a 90-day demand to serve and file a note of issue (see CPLR 3216 [b] [3]; Arcate v Cohen, 289 AD2d 148 [2001]). Concur — Buckley, J.P., Ellerin, Lerner, Friedman and Marlow, JJ.