Wachter v. City of New York

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about May 31, 2001, which denied plaintiffs motion to restore the action, unanimously reversed, on the law, without costs, *130the motion granted, and the matter remanded for further proceedings.

As conceded by defendant City, plaintiffs pre-note of issue case should not have been struck from the calendar pursuant to CPLR 3404 (see Johnson v Sam Minskoff & Sons, 287 AD2d 233, 235), and, in view of that circumstance and the absence of any other ground for marking the case off the calendar, plaintiffs motion to restore should have been granted. Concur— Tom, J.P., Buckley, Friedman, Marlow and Gonzalez, JJ.