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Supreme Court, Appellate Division, Second Department, New York.

Sam WASSERMAN, et al., Respondents, v. NATIONAL DATA PAYMENT SYSTEMS, INC., Appellant.

Decided: December 30, 2002

MYRIAM J. ALTMAN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT and REINALDO E. RIVERA, JJ. Bernstein & Schwartz, LLP, New York, N.Y. (Michael I. Bernstein of counsel), for Appellant. Bondy & Schloss LLP, New York, N.Y. (Roy I. Martin and Robyn E. Klein of counsel), for Respondents.

In an action, inter alia, for injunctive relief, the defendant appeals from an order of the Supreme Court, Kings County (G.Aronin, J.), dated October 16, 2001, which denied its motion to “restore” the action.

ORDERED that the order is modified, on the law, by adding after the word “denied” in the penultimate paragraph thereof the words “as unnecessary”;  as so modified, the order is affirmed, with costs to the plaintiffs.

The defendant moved in the Supreme Court, Kings County, to “restore” this action, bearing Index No. 5545/94, to the calendar pursuant to CPLR 3404 after it discovered that a related action in the Supreme Court, Nassau County, bearing Index No. 20026/94, had been “marked off”.   The discontinued action in Nassau County had no effect on the Kings County action.   Furthermore, no note of issue was filed in this case and the case was not marked off the Kings County calendar.   Since this case was not dismissed pursuant to CPLR 3404, there was no need for a motion to restore (see Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 725 N.Y.S.2d 57), and the Supreme Court should have denied the motion as unnecessary.

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