CPLR 3404; Restoration; Note of Issue.
By Jennifer Branca | Editor-In-Chief
In an August 6, 2015, Commercial Division decision by Justice Rosenbaum, the court determined that unless a note of issue has been filed a case cannot be dismissed as “abandoned” under CPLR 3404.
In 2008, plaintiff commenced suit. In 2009, the court denied plaintiff’s motion for a default judgment. Thereafter, plaintiff discovered that the court marked the matter as “disposed.” Plaintiff argued that the designation was improper because a note of issue was not filed. In an effort to resolve the issue, plaintiff’s counsel contacted the County Clerk advising it of the error. Counsel discovered that the Clerk’s office could not change the status of the case because the court had marked the matter as disposed.
In 2014, plaintiff moved for an order marking its case as active, restoring the matter to the Court’s calendar, and issued a scheduling order for discovery. Defendant opposed the motion, explained that this matter was dormant for a long period of time, and further questioned whether plaintiff’s motion was groundless.
The court quoted CPRL 3404 and held that marking the case off calendar was improper because a note of issue was not filed. Therefore, the court granted plaintiff’s motion in its entirety.
Genesee Off. Interiors, Inc. v Furniture Consultants, Inc., Index No. 2008/14477 (Rosenbaum, J.).