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GOLDSTEIN v. SILVERSTEIN

5973, 15576/00

89 A.D.3d 497 (2011)

932 N.Y.S.2d 341

2011 NY Slip Op 7921

SAMUEL N. GOLDSTEIN et al., Appellants, v. WENDY B. SILVERSTEIN, M.D., Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided November 10, 2011.

Plaintiffs improperly argue for the first time on appeal that dismissal of the action pursuant to CPLR 3404 was incorrect because the striking of the action from the trial calendar had returned the case to its pre-note of issue status (see Nieman v Sears, Roebuck & Co., 4 A.D.3d 255, 255 [2004]). Plaintiffs neither made a motion to restore the matter to the calendar within one year nor proffered an affidavit demonstrating that...

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