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MURRAY v. T.W. SMITH CORPORATION

286 A.D.2d 377 (2001)

728 N.Y.S.2d 716

MICHAEL MURRAY et al., Respondents, v. T.W. SMITH CORPORATION, Defendant and Third-Party Plaintiff. ESAB GROUP, INC., Doing Business as L-TEC WELDING & CUTTING SYSTEMS, INC., Third-Party Defendant-Appellant, et al., Third-Party Defendants. (And Other Third-Party Actions.)

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided August 13, 2001.

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

The Supreme Court providently exercised its discretion in restoring this action. Since no note of issue had been filed, this action could not be dismissed pursuant to CPLR 3404 (see, Lopez v Imperial Delivery Serv., 282 A.D.2d 190; P. Cubed Enters. v Roach, 265 A.D.2d 537), and the appellant did not demonstrate...

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