ADAMS v. FRANKEL (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for conversion, the plaintiff appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated December 13, 2022.  The order denied the plaintiff's motion to vacate the dismissal of the complaint and to restore the action to the active calendar.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion to vacate the dismissal of the complaint and to restore the action to the active calendar is granted.

In November 2016, the plaintiff commenced this action, inter alia, to recover damages for conversion against, among others, the defendants Elliott Frankel and 1215 Nostrand, LLC (hereinafter together the defendants).  On March 22, 2022, the action was marked “Dismissed” prior to the filing of a note of issue.  In May 2022, the plaintiff moved to vacate the dismissal of the complaint and to restore the action to the active calendar.  In an order dated December 13, 2022, the Supreme Court denied the plaintiff's 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” (Rosario v. Cummins, 222 A.D.3d 897, 897, 203 N.Y.S.3d 112;  see Santiago v. City of New York, 206 A.D.3d 948, 949–950, 170 N.Y.S.3d 600).  “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” (Rosario v. Cummins, 222 A.D.3d at 897, 203 N.Y.S.3d 112;  see Wells Fargo Bank, NA v. Oziel, 196 A.D.3d 618, 620, 152 N.Y.S.3d 123).

Here, as the defendants correctly concede, CPLR 3404 does not apply to this pre-note of issue action (see Santiago v. City of New York, 206 A.D.3d at 950, 170 N.Y.S.3d 600;  Finamore v. David Ullman, P.C., 179 A.D.3d 642, 644, 116 N.Y.S.3d 357).  Further, the defendants do not dispute the plaintiff's contention that there was no 90–day notice pursuant to CPLR 3216.  Moreover, the defendants do not assert that an order was issued directing dismissal of the complaint pursuant to 22 NYCRR 202.27 (see U.S. Bank N.A. v. Salem, 191 A.D.3d 921, 922, 138 N.Y.S.3d 382).  Rather, the defendants asserted that the “Plaintiff failed to timely file the Note of Issue and the action was therefore disposed.”  Thus, the plaintiff was entitled to restore the action to the active calendar, without regard to whether he had a reasonable excuse for the delay or engaged in dilatory conduct (see Wells Fargo Bank, NA v. Oziel, 196 A.D.3d at 620, 152 N.Y.S.3d 123).

The parties’ remaining contentions either need not be reached in light of our determination or are without merit.

Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate the dismissal of the complaint and to restore the action to the active calendar.

IANNACCI, J.P., GENOVESI, WOOTEN and VENTURA, JJ., concur.