Hecker v. Allstate Life Insurance

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered September 15, 2001, which denied plaintiff’s motion for an order restoring his case to the calendar and extending his time to file a note of issue, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted.

Defendants failed to timely submit proof that they served a copy of the order at issue with notice of entry upon plaintiff more than 30 days prior to the service of the notice of appeal (CPLR 5513 [a]). In the absence of such timely proof, this Court will not assume that the appeal is untimely (see Bowne of N.Y. v International 800 Telecom Corp., 178 AD2d 138).

Inasmuch as plaintiff never filed a note of issue, CPLR 3404 was inapplicable as a basis for the court to mark the case off the calendar (see Jiles v New York City Tr. Auth., 290 AD2d 307; Johnson v Minskoff & Sons, 287 AD2d 233, 234; Lopez v Imperial Delivery Serv., 282 AD2d 190, 199, lv dismissed 96 NY2d 937). As there was no other appropriate basis to mark the case off the calendar, the court should have granted plaintiff’s motion (id.). Concur — Mazzarelli, J.P., Lerner, Rubin, Marlow and Gonzalez, JJ.