TUALA v. EMPIRE BUILDERS RESTORATION CORP (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Empire Builders & Restoration Corp. appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated July 17, 2024.  The order granted the plaintiff's motion to restore the action to active status and to extend the plaintiff's time to file a note of issue.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the plaintiff's motion to restore this action to active status and to extend the plaintiff's time to file a note of issue.  Since this action was in pre-note of issue status, CPLR 3404 does not apply (see Countrywide Home Loans, Inc. v. Gibson, 111 A.D.3d 875, 875, 976 N.Y.S.2d 142;  Varricchio v. Sterling, 86 A.D.3d 535, 536, 926 N.Y.S.2d 320;  Lopez v. Imperial Delivery Serv., Inc., 282 A.D.2d 190, 199, 725 N.Y.S.2d 57).  Further, there was neither a 90–day notice pursuant to CPLR 3216 nor an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 (see Alli v. Baijnath, 101 A.D.3d 771, 957 N.Y.S.2d 166;  Mitskevitch v. City of New York, 78 A.D.3d 1137, 1138, 911 N.Y.S.2d 662;  Grant v. County of Nassau, 28 A.D.3d 714, 814 N.Y.S.2d 219).

CONNOLLY, J.P., CHRISTOPHER, VOUTSINAS and HOM, JJ., concur.