Martinez v. Jesionowska

Order, Supreme Court, New York County (Eileen Bransten, J.), entered October 13, 2005, which denied the motion by defendant Frederic Harris, M.D. and the cross motion by defendants Jesionowska, Mentus and Beth Israel Medical Center to dismiss the action as abandoned, unanimously affirmed, without costs. It is uncontested that this case, originally commenced in 240 Queens County in 1999, was ultimately transferred to New York County in 2001 after defendants successfully moved for a change of venue. Although a note of issue was filed in Queens County prior to the transfer, there is no evidence of record that the action was entered on the trial calendar in New York County after the transfer. A motion to dismiss an action as abandoned pursuant to CPLR 3404 may be properly made only with respect to cases on the trial calendar (Johnson v Minskoff & Sons, 287 AD2d 233 [2001]). Thus, this action could not have been dismissed under CPLR 3404 because it was not on the trial calendar in New York County. Furthermore, we note that defendants never filed a 90-day notice for dismissal for want of prosecution pursuant to CPLR 3216 (b) (3) (see Carino Italian Style v Shammah, 266 AD2d 1 [1999]). We do not condone the extensive period of inactivity in this action, but CPLR 3404 is not the appropriate device to address that failing. Concur—Mazzarelli, J.E, Friedman, Marlow, Sullivan and Catterson, JJ.