BAEZ v. KAYANTAS (2002)

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

Reinz BAEZ, Respondent, v. Kostas KAYANTAS, et al., Appellants.

Decided: October 15, 2002

ANITA R. FLORIO, J.P., SONDRA MILLER, STEPHEN G. CRANE and WILLIAM F. MASTRO, JJ.

Fiedelman & McGaw, Jericho, N.Y. (Dawn C. DeSimone of counsel), for appellants. Jaghab, Jaghab & Jaghab, P.C., Mineola, N.Y. (Matthew Fleischer of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated March 12, 2002, as granted the plaintiff's motion to “restore” the case to the trial calendar.

ORDERED that the order is affirmed insofar as appealed from, with costs.

CPLR 3404 is inapplicable because the case was never marked off pursuant to that provision. Rather, the case was mistakenly marked settled by the court. Accordingly, the Supreme Court correctly restored the case to its prior position on the trial calendar (see Hernandez v. City of New York, 290 A.D.2d 416, 736 N.Y.S.2d 604).

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