THOMPKINS v. ORTIZ (2018)

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about June 23, 2017, which denied plaintiff's motion to restore the case to the trial calendar, unanimously reversed, on the law, without costs, and the motion granted.  Appeal from order, same court and Justice, entered on or about August 30, 2017, which denied plaintiff's motion for leave to renew and reargue, unanimously dismissed, without costs, as academic.

Plaintiff challenges the applicability of CPLR 3404, on which the motion court apparently relied in denying her motion to restore the case to the calendar, for the first time on appeal.  Since it is a legal argument that appears on the face of the record and could not have been avoided if brought to defendant's attention at the proper juncture, we will review it (see Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209, 641 N.Y.S.2d 252 [1st Dept. 1996], lv denied 88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996] ).

The order that marked the case off the calendar directed plaintiff to provide additional discovery.  It thus effectively vacated the note of issue and returned the case to pre-note of issue status (see Matos v. City of New York, 154 A.D.3d 532, 63 N.Y.S.3d 324 [1st Dept. 2017] ).  As CPLR 3404 does not apply to cases in which either no note of issue has been filed or the note of issue has been vacated (Turner v. City of New York, 147 A.D.3d 597, 46 N.Y.S.3d 869 [1st Dept. 2017] ), it does not apply to this case.