Turner v. City of New York

Appellate Division of the Supreme Court of New York

Turner v. City of New York

2017 NY Slip Op 1323, 147 A.D.3d 597, 46 N.Y.S.3d 869

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

DecidedFebruary 21, 2017

Docket3168 303531/08

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 1323 (Turner v. City of New York) 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.

Bluebook

Turner v. City of New York, 2017 NY Slip Op 1323, 147 A.D.3d 597, 46 N.Y.S.3d 869 (N.Y. Ct. App. 2017).

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Opinion

Judgment, Supreme Court, Bronx County (Ben R. Barbato, J.), entered February 5, 2015, dismissing the complaint, pursuant to an order, same court and Justice, entered October 17, 2014, which granted defendants’ motion to dismiss the complaint pursuant to CPLR 3404 and denied plaintiffs’ cross motion to deem the new note of issue properly filed, unanimously reversed, on the law, without costs, defendants’ motion denied, and plaintiffs’ cross motion granted.

The motion court erred in dismissing the negligence action pursuant to CPLR 3404. When the action was removed from the trial calendar, the court indicated that it should be continued as a pre-note of issue case. CPLR 3404 does not apply to cases in which no note of issue has been filed or the note of issue has been vacated (see Tejeda v Dyal, 83 AD3d 539, 540 [1st Dept 2011], lv dismissed 17 NY3d 923 [2011]). Rather, avenues for dismissal are limited to CPLR 3216 and/or 22 NYCRR 202.27 (id.). The latter is inapplicable to the facts of this case, and defendants failed to comply with the preconditions of the former (id.).

Defendants failed to preserve their argument that the note *598 of issue should not be reinstated because the conditions for reinstatement set forth in 22 NYCRR 202.21 (f) were not met (see Diarrassouba v Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525, 525 [1st Dept 2014]). In any event, plaintiffs’ counsel’s affirmation was sufficient to meet the requirements of that rule.

Concur — Acosta, J.P., Renwick, Moskowitz, Fein-man and Gesmer, JJ.

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Judgment, Supreme Court, Bronx County (Ben R. Barbato, J.), entered February 5, 2015, dismissing the complaint, pursuant to an order, same court and Justice, entered October 17, 2014, which granted defendants’ motion to dismiss the complaint pursuant to CPLR 3404 and denied plaintiffs’ cross motion to deem the new note of issue properly filed, unanimously reversed, on the law, without costs, defendants’ motion denied, and plaintiffs’ cross motion granted.

The motion court erred in dismissing the negligence action pursuant to CPLR 3404. When the action was removed from the trial calendar, the court indicated that it should be continued as a pre-note of issue case. CPLR 3404 does not apply to cases in which no note of issue has been filed or the note of issue has been vacated (see Tejeda v Dyal, 83 AD3d 539, 540 [1st Dept 2011], lv dismissed 17 NY3d 923 [2011]). Rather, avenues for dismissal are limited to CPLR 3216 and/or 22 NYCRR 202.27 (id.). The latter is inapplicable to the facts of this case, and defendants failed to comply with the preconditions of the former (id.).

Defendants failed to preserve their argument that the note *598 of issue should not be reinstated because the conditions for reinstatement set forth in 22 NYCRR 202.21 (f) were not met (see Diarrassouba v Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525, 525 [1st Dept 2014]). In any event, plaintiffs’ counsel’s affirmation was sufficient to meet the requirements of that rule.

Concur — Acosta, J.P., Renwick, Moskowitz, Fein-man and Gesmer, JJ.

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Bluebook (online)

2017 NY Slip Op 1323, 147 A.D.3d 597, 46 N.Y.S.3d 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-city-of-new-york-nyappdiv-2017.

Opinion

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