| Barbu v Savescu |
| 2008 NY Slip Op 02546 [49 AD3d 678] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Liliana Barbu et al., Respondents, v Napoleon Savescu etal., Defendants, and Jay D. Tartell et al., Appellants. |
—[*1] Stephen Civardi, P.C., Rockville Centre, N.Y. (Richard C. Obiol of counsel), forrespondents.
In an action to recover damages for medical malpractice, wrongful death, and pain andsuffering, etc., the defendants Jay D. Tartell, Craig J. Youner, and Advanced RadiologicalImaging, P.C., appeal from an order of the Supreme Court, Queens County (Dollard, J.), datedFebruary 23, 2007, which denied their motion pursuant to CPLR 3216 and 3404 to dismiss thecomplaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied that branch of the appellants' motion which waspursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them. The plaintiffsfiled a timely note of issue and there is no indication in the record that the note of issue was evervacated. Relief pursuant to CPLR 3216 is no longer available based on a plaintiff's unreasonableneglect to proceed or delay in the prosecution of an action after the filing of the note of issue(see Chase v Scavuzzo, 87 NY2d 228, 231, 233 [1995]; Ballestero v Haf Edgecombe Assoc., L.P.,33 AD3d 952, 953 [2006]; Basetti v Nour, 287 AD2d 126, 128 [2001];Lopez v Imperial Delivery Serv., 282 AD2d 190, 194 [2001]).
Furthermore, the Supreme Court properly denied that branch of the appellants' motion whichwas pursuant to CPLR 3404 to dismiss the complaint insofar as asserted against them. There was[*2]no proof that the action was marked "off" the calendar as thatterm is used in CPLR 3404. The issuance of a stay of the action was not the equivalent ofmarking the case "off" the calendar (see Ballestero v Haf Edgecombe Assoc., L.P., 33AD3d at 953; see generally Basetti v Nour, 287 AD2d at 132-133). Fisher, J.P., Florio,Angiolillo, Dickerson and Belen, JJ., concur. [See 2007 NY Slip Op 30578(U).]