Mandelli v. 10 Park Avenue Tenants Corp.

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Jackson, J.), dated January 9, 2001, which denied their motion for leave to file a note of issue, and (2) an order of the same court, dated February 28, 2001, which granted the defendant’s - cross motion to dismiss the complaint purportedly pursuant to CPLR 3404.

Ordered that the orders are reversed, on the law, with costs to the plaintiffs, the motion for leave to file a note of issue is granted, and the cross motion is denied.

If no note of issue has been filed, it is improper to mark a case off the calendar (see Wasilewicz v Village of Monroe, 288 AD2d 377). Since no note of issue was filed in this case, CPLR 3404 has no application here (see Lopez v Imperial Delivery Serv., 282 AD2d 190). In view of the foregoing, the plaintiffs should be permitted to file a note of issue. Santucci, J.P., Gold-stein, Luciano, Schmidt and Crane, JJ., concur.