| Varricchio v Sterling |
| 2011 NY Slip Op 05802 [86 AD3d 535] |
| July 5, 2011 |
| Appellate Division, Second Department |
| Ernest Varricchio, Appellant, v Dennis Sterling et al.,Respondents. |
—[*1] Law Office of Golding and Associates PLLC, New York, N.Y. (Geovanny Fernandez ofcounsel), for respondents.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by his brief, from somuch of an order of the Supreme Court, Kings County (Vaughan, J.), entered June 7, 2010, asdenied that branch of his motion which was to restore the action to active status.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was to restore the action to active status is granted.
On July 16, 2008, this pre-note of issue action was marked "other final disp." after the partiesfailed to appear for a compliance conference. CPLR 3404 does not apply to this pre-note of issueaction (see Mitskevitch v City of NewYork, 78 AD3d 1137, 1138 [2010]; Lopez v Imperial Delivery Serv., 282 AD2d190, 199 [2001]). Furthermore, there was neither a 90-day notice pursuant to CPLR 3216, nor anorder dismissing the complaint pursuant to 22 NYCRR 202.27 (see Mitskevitch v City ofNew York, 78 AD3d at 1138; Casavecchia v Mizrahi, 62 AD3d 741, 742 [2009]; Burdick v Marcus, 17 AD3d 388[2005]; 123X Corp. v McKenzie, 7AD3d 769 [2004]). Accordingly, that branch of the plaintiff's motion which was to restorethe action to active status should have been granted. Skelos, J.P., Dickerson, Hall, Austin andMiller, JJ., concur.