| Matter of Butler v Board of Trustees N.Y. City Fire Dept. PensionFund |
| 2012 NY Slip Op 00514 [91 AD3d 867] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| In the Matter of Thomas Butler, Appellant, v Board ofTrustees New York City Fire Department Pension Fund et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Paul Rephen, Inga Van Eysden,and Keith M. Snow of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board ofTrustees of the City of New York Fire Department Pension Fund, the petitioner appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Vaughan,J.), dated February 9, 2011, as, upon reargument, adhered to the determination in an order of thesame court dated July 7, 2010, denying his motion to restore the proceeding to active status, anddenied that branch of his motion which was for leave to renew his motion to restore theproceeding to active status.
Ordered that the order dated February 9, 2011, is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to the determination in the order dated July 7,2010, denying the petitioner's motion to restore the proceeding to active status, and substitutingtherefor a provision, upon reargument, vacating the determination in the order dated July 7, 2010,denying the petitioner's motion, and thereupon granting the petitioner's motion to restore theproceeding to active status; as so modified, the order dated February 9, 2011, is affirmed insofaras appealed from, with costs to the petitioner.
It is undisputed that on July 29, 2009, this proceeding was "marked off" the calendar after thepetitioner failed to appear at the Supreme Court's calendar call. Contrary to the respondents'contention, CPLR 3404 does not apply to this pre-note of issue proceeding (see Varricchio v Sterling, 86 AD3d535, 536 [2011]; Mitskevitch v Cityof New York, 78 AD3d 1137, 1138 [2010]; Lopez v Imperial Delivery Serv.,282 AD2d 190, 199 [2001]). Furthermore, there was neither a 90-day notice pursuant to CPLR3216, nor an order dismissing the petition pursuant to 22 NYCRR 202.27 (see Varricchio vSterling, 86 AD3d at 536; Mitskevitch v City of New York, 78 AD3d at 1138; Casavecchia v Mizrahi, 62 AD3d741, 742 [2009]; Burdick vMarcus, 17 AD3d 388 [2005]). Accordingly, upon reargument, the petitioner's motion torestore the proceeding to active status should have been granted. Rivera, J.P., Eng, Chambers,Sgroi and Miller, JJ., concur.