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Cioffi v. Kennedy

284 A.D.2d 491 Court N.Y. App. Div. Decision date 2001-06-25 English

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p. 491
Matthew Cioffi, Respondent, v Blair Kennedy, Appellant, et al., Defendant.
[726 NYS2d 581]

—In an action to recover damages for personal injuries, the defendant Blair Kennedy

p. 492
appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated November 21, 2000, as granted that branch of the plaintiffs motion which was to restore the action to the trial calendar.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant’s contention, the respondent was not required to meet the standards applicable to a party seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404. Since there is no evidence that a note of issue placing the action on the trial calendar was filed (see, CPLR 3402), the action could not be dismissed pursuant to CPLR 3404 (see, Georgetown Mews Owners Corp. v Campus Assocs., 283 AD2d 608 ; Lopez v Imperial Delivery Serv., 282 AD2d 190 ; P. Cubed Enters. v Roach, 265 AD2d 537 ; Davila v Galarza, 221 AD2d 308 ). Therefore, the Supreme Court properly granted that branch of the plaintiffs motion which was to restore the action. Santucci, J. P., S. Miller, Luciano, Feuerstein and Adams, JJ., concur.

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