CIOFFI v. KENNEDY

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant's contention, the respondent was not required to meet the standards applicable to a party seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404. Since there is no evidence that a note of issue placing the action on the trial calendar was filed (see, CPLR 3402), the action could not be dismissed pursuant to CPLR 3404 (see, Georgetown Mews Owners Corp. v. Campus Assocs., A.D.2d [2d Dept., May 29, 2001]; Lopez v. Imperial Delivery Serv., A.D.2d [2d Dept., May 14, 2001; P. Cubed Enters. v. Roach, 265 A.D.2d 537; Davila v. Galarza, 221 A.D.2d 308). Therefore, the Supreme Court properly granted that branch of the plaintiff's motion which was to restore the action.

SANTUCCI, J.P., S. MILLER, LUCIANO, FEUERSTEIN and ADAMS, JJ., concur.