Goldstein v. Silverstein

*498Plaintiffs improperly argue for the first time on appeal that dismissal of the action pursuant to CPLR 3404 was incorrect because the striking of the action from the trial calendar had returned the case to its pre-note of issue status (see Nieman v Sears, Roebuck & Co., 4 AD3d 255, 255 [2004]). Plaintiffs neither made a motion to restore the matter to the calendar within one year nor proffered an affidavit demonstrating that he had a meritorious cause of action. Concur — Tom, J.P, Andrias, Freedman and Richter, JJ.