Opinion
April 12, 1984
Appeal from the Supreme Court, Onondaga County, Balio, J.
Present — Dillon, P.J., Denman, Boomer, Green and Schnepp, JJ.
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 [a]; 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 A.D.2d 706; Moran v Portchester Iron Works, 11 A.D.2d 783; Vinal v New York Cent. R.R. Co., 48 Misc.2d 362; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3403.21). ¶ 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).