Opinion
2001-08977
Submitted October 2, 2002.
January 21, 2003.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Bernstein, J.), dated September 5, 2001, which granted the plaintiff's motion to restore the action.
Jaffe Nohavicka, New York, N.Y. (Stacy R. Seldin and David Allweiss of counsel), for appellants.
Caesar Napoli, New York, N.Y. (J. Sean Connelly of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court should not have marked the case "off" the calendar based upon the plaintiff's failure to attend a compliance conference since CPLR 3404 should not be applied to pre-note of issue cases (see Wasliewicz v. Village of Monroe Police Dept., 288 A.D.2d 377; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190). Accordingly, the Supreme Court properly granted the motion to restore the action.
FEUERSTEIN, J.P., KRAUSMAN, LUCIANO, TOWNES and COZIER, JJ., concur.