Appellate Division of the Supreme Court of New York, 2011

Varricchio v. Sterling

Varricchio v. Sterling
Appellate Division of the Supreme Court of New York · Decided July 5, 2011
86 A.D.3d 535; 926 N.Y.2d 320
Varricchio v. Sterling

Cases that cite this one

10 later published cases cite this decision.

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Opinion of the Court

On July 16, 2008, this pre-note of issue action was marked *536“other final disp.” after the parties failed to appear for a compliance conference. CPLR 3404 does not apply to this pre-note of issue action (see Mitskevitch v City of New York, 78 AD3d 1137, 1138 [2010]; Lopez v Imperial Delivery Serv., 282 AD2d 190, 199 [2001]). Furthermore, there was neither a 90-day notice pursuant to CPLR 3216, nor an order dismissing the complaint pursuant to 22 NYCRR 202.27 (see Mitskevitch v City of New York, 78 AD3d at 1138; Casavecchia v Mizrahi, 62 AD3d 741, 742 [2009]; Burdick v Marcus, 17 AD3d 388 [2005]; 123X Corp. v McKenzie, 7 AD3d 769 [2004]). Accordingly, that branch of the plaintiff’s motion which was to restore the action to active status should have been granted. Skelos, J.P, Dickerson, Hall, Austin and Miller, JJ., concur.

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