Inasmuch as plaintiff never served and filed a note of issue, CPLR 3404 was inapplicable as a basis to dismiss the complaint (see, Johnson v. Minskoff Sons, Inc., 287 A.D.2d 233, 2001 N.Y. App. Div. LEXIS 12361; see also, Jiles v. NYCTA, 290 A.D.2d 307, 2002 N.Y. App. Div. LEXIS 309). Counsel's erroneous notification to the court, in August 1998, that the case had been settled, was the only reason the matter was removed from the court's list of active cases. Such circumstances can have caused neither prejudice to defendant, since its own files would clearly reflect the state of the litigation, nor any other appropriate basis for a denial of the motion to restore. In light of the strong public policy of allowing cases to be decided on their merits (see, Silverio v. City of New York, 266 A.D.2d 129), it was improvident to deny plaintiff's motion.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.