Klevanskaya v. Khanimova

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated July 1, 2004, which granted the plaintiffs motion to restore the action to the calendar. Ordered that the order is affirmed, with costs. Contrary to the defendant’s contention, there is no evidence in the record that this case was dismissed due to the plaintiffs failure to appear at a compliance conference (see 22 NYCRR 202.27). Furthermore, CFLR 3404 does not apply to this prenote of issue action (see Lopez v Imperial Delivery Serv., 282 AD2d 190 [2001]), and there was no 90-day notice pursuant to CFLR 3216. Accordingly, the Supreme Court properly granted the plaintiffs motion to restore this action to the calendar after it had been marked inactive (see Burdick v Marcus, 17 AD3d 388 [2005]; Bar-El v Key Food Stores Co., Inc., 11 AD3d 420 [2004]; Auguste v Linden Gardens Condominium, 8 AD3d 414 [2004]; 123X Corp. v McKenzie, 7 AD3d 769 [2004]). H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.