BAR EL v. KEY FOOD STORES CO INC (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated August 5, 2003, which denied his motion to vacate the dismissal of the action, restore the case to the active calendar, and extend the time to file a note of issue.

ORDERED that the order is reversed, on the law, with costs, and the motion is granted, and the plaintiff's time to file a note of issue is extended until 30 days after service upon him of a copy of this decision and order.

In a preliminary conference order dated February 1, 2001, the Supreme Court set a deadline of May 1, 2001, for filing the note of issue.   Although the preliminary conference order did not state that the action would be dismissed if the plaintiff failed to file the note of issue by the specified date, on May 18, 2001, the case was marked “disposed” for failure to file a note of issue and dismissed.   The parties, unaware that the case was dismissed, engaged in discovery, and the plaintiff appeared for a deposition on July 16, 2001.   The defendant Key Food Stores Co., Inc., d/b/a Key Food, adjourned its deposition and has yet to be deposed.

It was error to dismiss the action since the plaintiff was never served with a 90-day demand pursuant to CPLR 3216 (see Chase v. Scavuzzo, 87 N.Y.2d 228, 638 N.Y.S.2d 587, 661 N.E.2d 1368;  O'Connell v. City Wide Auto Leasing, 6 A.D.3d 682, 775 N.Y.S.2d 543;  Akpinar v. John Hancock Mut. Life Ins. Co., 302 A.D.2d 337, 753 N.Y.S.2d 889), there was no order of dismissal pursuant to 22 NYCRR 202.27 (see 123X Corp. v. McKenzie, 7 A.D.3d 769, 776 N.Y.S.2d 893;  Kallicharan v. Coombes Props., Inc., 7 A.D.3d 578, 775 N.Y.S.2d 911), and CPLR 3404 does not apply to pre-note of issue cases (see Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 725 N.Y.S.2d 57).

Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate the dismissal of the action, restore the case to the active calendar, and extend the time to file a note of issue.