HERNANDEZ v. CITY OF NEW YORK

ORDERED that the order is affirmed, with one bill of costs.

Contrary to the appellants' contentions, the plaintiff was not required to demonstrate the elements necessary to restore an action to the trial calendar established under CPLR 3404 (see generally, Basetti v. Nour, A.D.2d [2d Dept., Oct. 1, 2001]). We agree with the Supreme Court that the evidence demonstrated that the case in fact was not marked off, struck from the calendar, or unanswered on a clerk's calendar call. Rather, the evidence indicated that the case was marked discontinued as a result of a clerk's error. Thus, the case was not subject to the provisions of CPLR 3404, and the Supreme Court properly granted the plaintiff's motion and restored the action to its prior place on the calendar.

In addition, the Supreme Court properly denied the belated motion of the appellant City of New York for summary judgment (see, CPLR 3212[a]; Neves v. Port Authority of N.Y. N.J., 265 A.D.2d 393, 394).

RITTER, ACTING P.J., FEUERSTEIN, GOLDSTEIN, FRIEDMANN and CRANE, JJ., concur.