Murray v. T.W. Smith Corporation

In an action to recover damages for personal injuries, the third-party defendant Esab Group, Inc., d/b/a L-Tec Welding & Cutting Systems, Inc., appeals from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated May 25, 2000, as granted that branch of the plaintiffs’ motion which was to restore the action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in restoring this action. Since no note of issue had been filed, this action could not be dismissed pursuant to CPLR 3404 (see, Lopez v Imperial Delivery Serv., 282 AD2d 190; P. Cubed Enters. v Roach, 265 AD2d 537), and the appellant did not demonstrate any other basis for dismissal. Bracken, P. J., S. Miller, McGinity and Schmidt, JJ., concur.