Pearl v. City of New York

—Order, Supreme Court, New York County (Eileen Bransten, J.), entered January 29, 2001, which granted defendants’ motions pursuant to CPLR 3404 to dismiss the action as abandoned, unanimously reversed, on the law, without costs, the motions denied, the complaint reinstated and the matter remanded for further proceedings.

As conceded by defendant, the complaint cannot be dismissed pursuant to CPLR 3404 since, as established by case law rendered after entry of the order on appeal, the note of issue had not yet been filed (see, Koutsoupakis v City of New York, 292 AD2d 191; citing, inter alia, Johnson v Minskoff & Sons, 287 AD2d 233). Concur—Nardelli, J.P., Buckley, Rosenberger, Ellerin and Rubin, JJ.