P. Cubed Enterprises, Inc. v. Roach

265 A.D.2d 537, 696 N.Y.S.2d 889, 1999 N.Y. App. Div. LEXIS 10793

Opinion

—In an action to recover damages for legal malpractice and fraud, the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated September 16, 1998, which denied their motion pursuant to CPLR 3404 to restore the action to the calendar.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is restored to the calendar.

Since no note of issue placing the action on the court’s calendar was filed (see, CPLR 3402), the court incorrectly dismissed the action pursuant to CPLR 3404. The correct procedure to dismiss the action required a motion pursuant to CPLR 3216 (see, Davila v Galarza, 221 AD2d 308). As no demand to file a note of issue within 90 days was served, dismissal under CPLR 3216 would also have been improper. Bracken, J. P., Krausman, McGinity and Schmidt, JJ., concur.