Merchants National Bank & Trust Co. v. Cargian

Order unanimously reversed, with costs to third-party plaintiffs, and motion denied. Memorandum: On a prior motion by third-party plaintiffs, the court vacated the note of issue which had been filed and struck this case from the calendar. A new note of issue placing the case upon the calendar has never been served or filed (see CPLR 3402, subd fa]; 3403, subd [b]). It was thus error to grant third-party defendants’ motion for a trial preference (Irish Constr. Co. v Standard Vending Corp., 47 AD2d 706; Moran v Portchester Iron Works, 11 AD2d 783; Vinal v New York Cent. R.R. Co., 48 Misc 2d 362; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3403.21). 11 The parties are in dispute as to whether third-party plaintiffs have been afforded sufficient opportunity to complete discovery. This decision is rendered without prejudice to third-party defendants again moving for a preference upon serving and filing a new note of issue. A statement of readiness must also be served and filed (see 22 NYCRR 103.1,1024.4), unless the court otherwise directs (see 22 NYCRR 103.4). (Appeal from order of Supreme Court, Onondaga County, Balio, J. — trial preference.) Present — Dillon, P. J., Denman, Boomer, Green and Schnepp, JJ.