ODOM v. NEW YORK CITY TRANSIT AUTHORITY

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

Janie ODOM, respondent, v. NEW YORK CITY TRANSIT AUTHORITY, appellant.

Decided: June 21, 2004

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence A. Silver of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated July 10, 2003, which granted the plaintiff's motion for leave to file a late note of issue.

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the defendant's contention, the precalendar order did not contain a 90-day demand pursuant to CPLR 3216.   Therefore, the court could not dismiss the action based on neglect to prosecute pursuant to CPLR 3216 (see 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;  Murray v. Smith Corp., 296 A.D.2d 445, 447, 744 N.Y.S.2d 901).   Accordingly, the Supreme Court properly granted the plaintiff's motion for leave to file a late note of issue.

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