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Supreme Court, Appellate Division, Second Department, New York.

Joan ANDRE, etc., et al., appellants, v. BONETTO REALTY CORP., et al., respondents.

Decided: September 26, 2006

ROBERT W. SCHMIDT, J.P., STEPHEN G. CRANE, GABRIEL M. KRAUSMAN, PETER B. SKELOS, and ROBERT J. LUNN, JJ. Beth J. Schlossman, Brooklyn, N.Y. (David Feinsilver of counsel), for appellants. Bennett, Ayervais & Bertrand, P.C., New York, N.Y. (Frank Cali of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated February 8, 2005, which denied their motion, inter alia, to restore the case to active status and granted the defendants' cross motion pursuant to CPLR 3404 to dismiss the complaint, and (2) from an order of the same court dated August 4, 2005, which denied their motion for leave to reargue.

ORDERED that the appeal from the order dated August 4, 2005, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated February 8, 2005, is reversed, on the law, with costs, the motion is granted, and the cross motion is denied.

After the plaintiffs filed a note of issue on November 30, 2000, the defendants moved in February or March of 2001 to strike it because discovery was incomplete.   On the return date of that motion, the plaintiffs voluntarily withdrew the note of issue to permit completion of discovery and the motion to strike the note of issue was “marked off” the motion calendar.   Thereafter, the case was listed in the court computer as “inactive pre-note.”   The defendants have never disputed that the note of issue was withdrawn, and contrary to the defendants' argument, the case was not “marked off” the trial calendar (cf. Escobar v. Deepdale Gen. Hosp., 172 A.D.2d 486, 567 N.Y.S.2d 842).   The parties thereafter engaged in discovery, but the deposition of the plaintiff Marie Andre was not completed and the plaintiffs were unsuccessful in getting the defendants to agree to a completion date.   Consequently, the plaintiffs moved, inter alia, to restore the matter to active status.   The defendants cross-moved pursuant to CPLR 3404 to dismiss the complaint on the ground that the case had been marked off the trial calendar three years before.   The Supreme Court denied the motion and granted the cross motion.

 CPLR 3404 is inapplicable to pre-note of issue cases (see Behren v. Warren, Gorham & Lamont, 301 A.D.2d 381, 382, 753 N.Y.S.2d 78;  Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 198-199, 725 N.Y.S.2d 57).   When a plaintiff withdraws the note of issue or when the note of issue has been vacated, the case reverts to its status as a pre-note case (see Carte v. Segall, 134 A.D.2d 396, 397, 520 N.Y.S.2d 943).   This is not the equivalent of marking a post-note case off the trial calendar (see Reitman v. St. Francis Hosp., 2 A.D.3d 429, 430, 767 N.Y.S.2d 843).   In the absence of a 90-day notice pursuant to CPLR 3216, restoring a case marked “ inactive” is automatic (see Klevanskaya v. Khanimova, 21 A.D.3d 350, 798 N.Y.S.2d 912;  Bar-El v. Key Food Stores Co., 11 A.D.3d 420, 783 N.Y.S.2d 47;  123X Corp. v. McKenzie, 7 A.D.3d 769, 769-770, 776 N.Y.S.2d 893;  Lucious v. Rutland Nursing Home of Kingsbrook Jewish Med. Ctr., 2 A.D.3d 412, 767 N.Y.S.2d 792).   Thus, a motion to restore to active status in such circumstance should be granted (see Badillo v. Sheepshead Rest. Assoc., 296 A.D.2d 514, 515, 745 N.Y.S.2d 491;   Jiles v. New York City Tr. Auth., 290 A.D.2d 307, 736 N.Y.S.2d 36).

 Since CPLR 3404 does not apply to an action in the pre-note stage (see Lopez v. Imperial Delivery Serv., supra;  see also Sylvester v. New Water St. Corp., 16 A.D.3d 486, 487, 791 N.Y.S.2d 185) the Supreme Court erred in applying the four-prong test for restoring matters to the trial calendar following their automatic dismissal pursuant to CPLR 3404 (see Basetti v. Nour, 287 A.D.2d 126, 131, 731 N.Y.S.2d 35).   The remedy for a defendant in a case such as this, pending in a pre-note status, is to serve a 90-day demand pursuant to CPLR 3216 (see Khaolaead v. Leisure Video, 18 A.D.3d 820, 821, 796 N.Y.S.2d 637;  Burdick v. Marcus, 17 A.D.3d 388, 792 N.Y.S.2d 356).   Thus, there was no basis for the denial of the motion to restore the case to active status and, certainly, no ground for dismissing the action (see Hemberger v. Jamaica Hosp., 306 A.D.2d 244, 761 N.Y.S.2d 252).

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