SUBURBAN RESTORATION CO INC v. VIGLOTTI (2008)

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Pagones, J.), dated January 18, 2007, which, sua sponte, directed dismissal of the action as abandoned pursuant to CPLR 3404 and (2) an order of the same court dated May 4, 2007, which denied the plaintiff's motion, in effect, for leave to renew its prior motion pursuant to 22 NYCRR 202.21(f) to reinstate the note of issue, which had been determined in an order of the same court dated May 31, 2006.

ORDERED that on the Court's own motion, the notice of appeal from the order dated January 18, 2007, is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order dated January 18, 2007, is reversed, on the law;  and it is further,

ORDERED that the order dated May 4, 2007, is reversed, on the law, the plaintiff's motion, in effect, for leave to renew its prior motion to reinstate the note of issue is granted, upon renewal, the order dated May 31, 2006, is vacated, the plaintiff's motion to reinstate the note of issue is granted, and the note of issue is reinstated;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

 In an order dated January 13, 2006, the Supreme Court, inter alia, vacated the note of issue.   Pursuant to that order, however, the action was not “marked ‘off’ ” the calendar, within the meaning of CPLR 3404 (see Barbu v. Savescu, 49 A.D.3d 678, 856 N.Y.S.2d 629;  see generally Basetti v. Nour, 287 A.D.2d 126, 132-133, 731 N.Y.S.2d 35).   The court's order vacating the note of issue, rather than being equivalent to an order striking the case from the calendar pursuant to CPLR 3404, merely placed the action back into pre-note of issue status (see Galati v. C. Raimondo & Sons Constr. Co., Inc., 35 A.D.3d 805, 806, 828 N.Y.S.2d 136;  Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974-975, 822 N.Y.S.2d 292;  Islam v. Katz Realty Co., 296 A.D.2d 566, 745 N.Y.S.2d 577;  Basetti v. Nour, 287 A.D.2d 126, 133, 731 N.Y.S.2d 35).   Since CPLR 3404 is inapplicable to pre-note of issue cases (see Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 196-197, 725 N.Y.S.2d 57), that statute did not provide a basis for the court to direct dismissal of the action (see Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 975, 822 N.Y.S.2d 292;  see also Hemberger v. Jamaica Hosp., 306 A.D.2d 244, 761 N.Y.S.2d 252).

 Further, an action in pre-note of issue status may be dismissed for want of prosecution only if the statutory preconditions for such dismissal are met (see CPLR 3216;  Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460;  Burdick v. Marcus, 17 A.D.3d 388, 388-389, 792 N.Y.S.2d 356), and here, those preconditions were not met (see e.g. Delgado v. New York City Hous. Auth., 21 A.D.3d 522, 523, 801 N.Y.S.2d 43).

 The Supreme Court improvidently denied the plaintiff's motion, in effect, for leave to renew its motion pursuant to 22 NYCRR 202.21(f) to reinstate the note of issue (see CPLR 2221[e] ).   The plaintiff's motion, in effect, for leave to renew, was supported by a proper and sufficient certificate of readiness and by an affidavit by a person having first-hand knowledge showing that there was merit to the action, satisfactorily showing the reasons for the acts or omissions which led to the note of issue being vacated, stating meritorious reasons for its reinstatement, and showing that the case was ready for trial (see 22 NYCRR 202.21[f];  Bloom v. Primus Auto. Fin. Servs., 292 A.D.2d 410, 410-411, 738 N.Y.S.2d 861;  McCoy v. Tepper, 278 A.D.2d 391, 391-392, 717 N.Y.S.2d 358).

The defendants' remaining contention is not properly before this Court.