Maharaj v. LaRoche

69 A.D.3d 684, 891 N.Y.2d 653

Opinion

The plaintiff moved to restore this action to the calendar after it was, in effect, dismissed pursuant to CPLR 3216 for failure to file a timely note of issue pursuant to a compliance order dated April 15, 2008. Notably, the compliance order specifically advised that it did not constitute a CPLR 3216 notice. Thus, the order could not be deemed a 90-day demand to file a note of issue, which is a precondition to dismissal under CPLR 3216 (see CPLR 3216 [b] [3]; Ratway v Donnenfeld, 43 AD3d 465 [2007]; Heifetz v Godoy, 38 AD3d 605 [2007]; Murray v Smith Corp., 296 AD2d 445, 447 [2002]). Accordingly, the plaintiffs motion to restore the action to the calendar should have been granted. Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.