Koutsoupakis v. City of New York

Order, Supreme Court, New York County (Joan Madden, J.), entered August 3, 2001, which, inter alia, denied third-party defendant-appellant’s motion to dismiss the complaint as abandoned pursuant to CPLR 3404, unanimously affirmed, without costs.

As a note of issue has yet to be filed, the complaint cannot be dismissed pursuant to CPLR 3404 (Johnson v Minskoff & Sons, 287 AD2d 233, citing Lopez v Imperial Delivery Serv., 282 AD2d 190, lv dismissed 96 NY2d 937; see also, Jiles v New York City Tr. Auth., 290 AD2d 307). We have considered and rejected appellant’s argument that the above authorities erroneously interpret CPLR 3404. Concur — Nardelli, J.P., Tom, Sullivan, Rubin and Friedman, JJ.