TRAVIS v. David Farber, etc., et al., respondents. (2006)

In an action, inter alia, to recover damages for personal injuries and for medical malpractice, the plaintiff appeals from (1) a judgment of the Supreme Court, Nassau County (Parga, J.), entered October 4, 2004, which, upon an order of the same court entered May 27, 2004, dismissing the action insofar as asserted against the defendants David Farber, Peter J. Ajemian, and Orthopedic & Sports Medicine Institute of Long Island for neglect to prosecute, dismissed the complaint insofar as asserted against those defendants, and (2) an order of the same court dated May 13, 2005, which denied her motion to vacate the judgment.

ORDERED that the order dated May 13, 2005, is reversed, on the law, the motion is granted, the judgment and the order entered May 27, 2004, are vacated, and the complaint is reinstated insofar as asserted against the defendants David Farber, Peter J. Ajemian, and Orthopedic & Sports Medicine Institute of Long Island;  and it is further,

ORDERED that the appeal from the judgment is dismissed as academic in light of our determination on the appeal from the order;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

By order dated May 15, 2003, the court, on its own motion, vacated the note of issue upon a finding that the case was not ready for trial (see 22 NYCRR 202.21 [e] ).   When the plaintiff failed to re-file the note of issue, the court entered an order on May 27, 2004, dismissing the action insofar as asserted against the defendants David Farber, Peter J. Ajemian, and the Orthopedic & Sports Medicine Institute of Long Island for “neglect in prosecution.”   This was error.

 The court's order vacating the note of issue was not equivalent to an order striking the case from the calendar pursuant to CPLR 3404, rather, it merely placed the action back into pre-note of issue status (see Islam v. Nathan 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 dismiss the action.   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;  Delgado v. New York City Hous. Auth., 21 A.D.3d 522, 801 N.Y.S.2d 43), and here, those preconditions were not met.   Accordingly, the plaintiff's motion to vacate the judgment of dismissal should have been granted.