| Maharaj v LaRoche |
| 2010 NY Slip Op 00227 [69 AD3d 684] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Rashieda Maharaj, Appellant, v Daniel LaRoche et al.,Respondents. |
—[*1]
In an action to recover damages for defamation and intentional infliction of emotionaldistress, the plaintiff appeals from an order of the Supreme Court, Kings County (Balter, J.),dated December 9, 2008, which denied her motion to restore the action to the calendar.
Ordered that the order is reversed, on the law, with costs payable by the respondents, and themotion to restore the action to the calendar is granted.
The plaintiff moved to restore this action to the calendar after it was, in effect, dismissedpursuant to CPLR 3216 for failure to file a timely note of issue pursuant to a compliance orderdated April 15, 2008. Notably, the compliance order specifically advised that it did not constitutea CPLR 3216 notice. Thus, the order could not be deemed a 90-day demand to file a note ofissue, which is a precondition to dismissal under CPLR 3216 (see CPLR 3216 [b] [3]; Ratway v Donnenfeld, 43 AD3d465 [2007]; Heifetz v Godoy,38 AD3d 605 [2007]; Murray v Smith Corp., 296 AD2d 445, 447 [2002]).Accordingly, the plaintiff's motion to restore the action to the calendar should have been granted.Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.