BARBU v. Jay D. Tartell, etc., et al., appellants. (2008)

In an action to recover damages for medical malpractice, wrongful death, and pain and suffering, etc., the defendants Jay D. Tartell, Craig J. Youner, and Advanced Radiological Imaging, P.C., appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated February 23, 2007, which denied their motion pursuant to CPLR 3216 and 3404 to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

 The Supreme Court properly denied that branch of the appellants' motion which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them.   The plaintiffs filed a timely note of issue and there is no indication in the record that the note of issue was ever vacated.   Relief pursuant to CPLR 3216 is no longer available based on a plaintiff's unreasonable neglect to proceed or delay in the prosecution of an action after the filing of the note of issue (see Chase v. Scavuzzo, 87 N.Y.2d 228, 231, 233, 638 N.Y.S.2d 587, 661 N.E.2d 1368;  Ballestero v. Haf Edgecombe Assocs., L.P., 33 A.D.3d 952, 953, 823 N.Y.S.2d 512;  Basetti v. Nour, 287 A.D.2d 126, 128, 731 N.Y.S.2d 35;  Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 194, 725 N.Y.S.2d 57).

 Furthermore, the Supreme Court properly denied that branch of the appellants' motion which was pursuant to CPLR 3404 to dismiss the complaint insofar as asserted against them.   There was no proof that the action was marked “off” the calendar as that term is used in CPLR 3404.   The issuance of a stay of the action was not the equivalent of marking the case “off” the calendar (see Ballestero v. Haf Edgecombe Assocs., L.P., 33 A.D.3d at 953, 823 N.Y.S.2d 512;  see generally Basetti v. Nour, 287 A.D.2d at 132-133, 731 N.Y.S.2d 35).