SKOLNIK v. METRO NORTH COMMUTER RAILROAD (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered September 25, 2003, which denied that branch of her motion which was, in effect, to restore the action to the trial calendar.

ORDERED that the order is modified, on the law, by adding to the decretal paragraph thereof the words “as unnecessary” after the word “denied;” as so modified, the order is affirmed, with costs, and the Clerk of the Supreme Court, Westchester County, is directed to schedule a conference date before the assigned Justice immediately upon being served with a copy of this decision and order by the appellant's attorney.

By decision and order on motion dated April 6, 2004, this court dismissed an appeal from a decision of the Supreme Court dated June 30, 2003, which purported to dismiss the complaint in this action.   As no order was entered upon the decision, the Supreme Court's ruling as embodied therein was without effect (see Petrie v. Petrie, 144 A.D.2d 549, 535 N.Y.S.2d 958, citing Talcott Factors v. Larfred, Inc., 115 A.D.2d 397, 400, 496 N.Y.S.2d 27).   Accordingly, that branch of the appellant's motion which was, in effect, to restore the action to the trial calendar was unnecessary.