| Casavecchia v Mizrahi |
| 2009 NY Slip Op 03858 [62 AD3d 741] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Joseph Casavecchia Sr., Respondent, v William W.Mizrahi et al., Appellants. |
—[*1] Westerman Ball Ederer Miller & Sharfstein, LLP, Mineola, N.Y. (Jeffrey A. Miller andRichard Gabriele of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff has the exclusive right tomanage the construction of a real estate project to be developed by the defendant Casa MasonCorp., and for rescission of a sale of shares of stock of the defendant Casa Mason Corp. to thedefendant Chitoor Govindaraj, the defendants appeal from an order of the Supreme Court,Nassau County (Warshawsky, J.), entered July 2, 2008, which granted the plaintiff's motion to"restore" the action to the active calendar.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the plaintiff's motion to "restore" this action to theactive calendar after it had been marked "disposed," given that CPLR 3404 does not apply to thispre-note of issue action (see Lopez v Imperial Delivery Serv., 282 AD2d 190 [2001]),there was no 90-day notice pursuant to CPLR 3216, and there was no order dismissing thecomplaint pursuant to 22 NYCRR 202.27 (see Burdick v Marcus, 17 AD3d 388 [2005]; 123X Corp. v McKenzie, 7 AD3d769 [2004]; Golan v Long Is.Jewish Med. Ctr., 7 AD3d 489, 490 [2004]; Lucious v Rutland Nursing Home of Kingsbrook Jewish Med. Ctr., 2AD3d 412 [2003]). Skelos, J.P., Florio, Balkin and Belen, JJ., concur.