123X Corp. v. McKenzie

In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated February 26, 2003, which granted the plaintiffs motion to “restore” the action to the calendar and denied their cross motion to dismiss the action. Ordered that the order is affirmed, with costs. The Supreme Court properly granted the plaintiffs motion to [770] “restore” this action after it had been marked inactive due to the parties’ failure to appear at a status conference. CPLR 3404 does not apply to this pre-note of issue action (see Lopez v Imperial Delivery Serv., 282 AD2d 190 [2001]), there was no 90-day notice pursuant to CPLR 3216, and there was no order dismissing the complaint pursuant to 22 NYCRR 202.27. Accordingly, the motion was properly granted (see Lucious v Rutland Nursing Home of Kingsbrook Jewish Med. Ctr., 2 AD3d 412 [2003]; Gendus v Sheraton|Atl. City W., 302 AD2d 427 [2003]; Torres v Nu-Way Mach. Corp. Co., 296 AD2d 545 [2002]; Farley v Danaher Corp., 295 AD2d 559 [2002]). The defendants’ remaining contention is without merit. Santueci, J.P., Smith, Luciano and Adams, JJ., concur.