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VACATING THE NOTE OF ISSUE RETURNS THE CASE TO THE PRE-NOTE OF ISSUE DISCOVERY STAGE, NO NEED TO MAKE A MOTION TO RESTORE THE ACTION TO THE TRIAL CALENDAR; THE MOTION TO EXTEND THE TIME TO FILE A NOTICE OF ISSUE, CITING LAW OFFICE FAILURE, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that vacating the note of issue automatically removes the case from the trial calendar and restores the action to the pre-note of issue discovery stage. The Second Department also determined the motion to extend the time to file a note of issue, citing law office failure, should have been granted:

The Supreme Court should have denied, as unnecessary, that branch of the plaintiff’s motion which was to restore the action to the active calendar … . Since the note of issue … was vacated, thereafter, the action was restored to the pre-note of issue discovery stage … . Because no note of issue had been filed, the action was not on the trial calendar. Therefore, the court’s action of marking the action “disposed” … , after the plaintiff failed to file and serve a note of issue by the court-ordered deadline, did not dismiss the action … . For the same reason, contrary to the defendant’s contention, CPLR 3404 was inapplicable … . As “this action was never properly dismissed, there was no need for a motion to restore” … .

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to extend his time to file a note of issue. CPLR 2004 allows a court to “extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown.” Here, the plaintiff established good cause for his delay in completing discovery and filing a note of issue based on law office failure, among other things … . Ryskin v Corniel, 2020 NY Slip Op 01658, Second Dept 3-11-20

 

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