| Sellitto v Women's Health Care Specialists |
| 2009 NY Slip Op 00524 [58 AD3d 828] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Regina Sellitto et al., Respondents, v Women's HealthCare Specialists et al., Appellants, et al., Defendant. |
—[*1] Law Offices of Sybil Shainwald, P.C., New York, N.Y., for respondents.
In an action to recover damages for medical malpractice, etc., the defendants Women'sHealth Care Specialists, David M. Herzog, Michael A. Schirripa, Francis X. Martingano, andChristopher La Porta appeal from an order of the Supreme Court, Kings County (Rothenberg, J.),dated February 4, 2008, which granted the plaintiffs' motion, inter alia, to restore the action tothe trial calendar.
Ordered that the order is affirmed, with costs.
By order dated February 22, 2005, the Supreme Court, sua sponte, vacated the note of issuepursuant to 22 NYCRR 202.21 (e) and struck the action from the trial calendar upon theplaintiffs' inability to proceed to trial. By order dated June 6, 2005, the Supreme Court directedthe plaintiffs to file a note of issue on or before July 6, 2005, or the action would be dismissed.When the plaintiffs failed to file a note of issue, the action was dismissed on July 22, 2005. Bynotice of motion dated July 23, 2007, the plaintiffs moved, inter alia, to restore the action to thetrial calendar. The Supreme Court granted the motion.
Contrary to the appellants' contention, the court's order vacating the note of issue andstriking the action from the trial calendar placed the action back into pre-note of issue status (see Dokaj v Ruxton Tower Ltd.Partnership, 55 AD3d 661 [2008]; Suburban Restoration Co., Inc. v Viglotti, 54 AD3d 750, 751[2008]; Galati v C. Raimondo & SonsConstr. Co., Inc., 35 AD3d 805, 806 [2006]). Since CPLR 3404 was inapplicable to thispre-note of issue action, it did not provide a basis for the dismissal of the action (seeSuburban Restoration Co., Inc. v Viglotti, 54 AD3d at 751; Galati v C. Raimondo &Sons Constr. Co., Inc., 35 AD3d at 806; Travis v Cuff, 28 AD3d 749, 750 [2006]).
Moreover, because this action was in pre-note of issue status, it could be dismissed for wantof prosecution only if the statutory preconditions for such dismissal were met (see CPLR3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Delgado v New York City Hous.Auth., 21 AD3d 522 [2005]), and here, those preconditions were not met (see e.g. Ratway v Donnenfeld, 43AD3d 465, 466 [2007]; Heifetz vGodoy, 38 AD3d 605 [2007]; Delgado v New York City Hous. Auth., 21 AD3d 522, 523[2005]). Accordingly, the Supreme Court properly granted the plaintiffs' motion, inter alia, torestore the action to the trial calendar. Fisher, J.P., Florio, Carni and Eng, JJ., concur.