ROSARIO v. CUMMINS (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated May 13, 2021.  The order, insofar as appealed from, denied those branches of the plaintiff's motion which were to restore the action to the active calendar and to extend the time to file a note of issue.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were to restore the action to the active calendar and to extend the time to file a note of issue are granted.

In August 2015, the plaintiff commenced this action, inter alia, to recover damages for breach of contract against, among others, the defendants Robert Cummins, Arkell Cox, Brooklyn Hop, LLC, Brooklyn Hop 2, LLC, Brooklyn Hop 3, LLC, and Brooklyn Hop 4, LLC (hereinafter collectively the defendants).  Pursuant to a so-ordered stipulation dated January 5, 2020, the plaintiff was required to file a note of issue on or before March 6, 2020.  The plaintiff did not file a note of issue by that date.  In February 2021, the plaintiff moved, among other things, to restore the action to the active calendar and to extend the time to file a note of issue.  In an order dated May 13, 2021, the Supreme Court, inter alia, denied those branches of the motion.  The plaintiff appeals.

When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90–day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 (see Fifth Third Mtge. Co. v. Schiro, 210 AD3d 953, 954).  In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue (see Onewest Bank, FSB v. N & R Family Trust, 200 AD3d 900, 902;  Wells Fargo Bank, NA v. Oziel, 196 AD3d 618, 620).

Here, the so-ordered stipulation did not suffice as a predicate notice for dismissal pursuant to CPLR 3216.  The restoration of the action to the active calendar should have been automatic.  Consequently, it was error for the Supreme Court to deny those branches of the plaintiff's motion which were to restore the action to the active calendar and to extend the time to file a note of issue under those circumstances (see Carrero v. Pena, 217 AD3d 915).

The defendants’ remaining contention is improperly raised for the first time on appeal.

Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were to restore the action to the active calendar and to extend the time to file a note of issue.

CONNOLLY, J.P., GENOVESI, WARHIT and TAYLOR, JJ., concur.