Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is restored to the calendar.
Since no note of issue placing the action on the court's calendar was filed (see, CPLR 3402), the court incorrectly dismissed the action pursuant to CPLR 3404. The correct procedure to dismiss the action required a motion pursuant to CPLR 3216 (see, Davila v Galarza,
Let's get started
Welcome to the leading source of independent legal reporting
Sign on now to see your case.
Or view more than 10 million decisions and orders.
- Updated daily.
- Uncompromising quality.
- Complete, Accurate, Current.