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THE ONE YEAR TIME-LIMIT IN CPLR 3404 FOR A MOTION TO RESTORE AN ACTION TO THE CALENDAR DID NOT APPLY TO THIS CASE WHERE THE ACTION WAS ADMINISTRATIVELY DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined CPLR 3404, which requires a motion to restore an action to the calendar be made within one year, did not apply here where the action was administratively dismissed:

The plaintiffs commenced this action, inter alia, for a judgment declaring a certain deed null and void. In November 2017, the plaintiffs moved, among other things, to extend their time to file a note of issue. Subsequently, this action was administratively dismissed on December 26, 2017, for failure to file a note of issue, and the plaintiffs’ motion was “marked off” the calendar on January 10, 2018. On or about January 31, 2019, the plaintiffs moved, inter alia, to restore the action to the active calendar. In an order dated February 26, 2019, the Supreme Court denied the plaintiffs’ motion on the ground that they had failed to move to restore the action within the one-year time limit of CPLR 3404. The plaintiffs appeal.

CPLR 3404 does not apply to this pre-note of issue action … . Since the action could not properly be marked off pursuant to CPLR 3404, the plaintiffs were “not required to move to restore within any specified time frame” … . Further, there was neither a 90-day demand pursuant to CPLR 3216 … , nor an order dismissing the action pursuant to 22 NYCRR 202.27 … . Wynn v Wynn-Wright, 2022 NY Slip Op 00466, Second Dept 1-26-22

 

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SECOND DEGREE MURDER COUNTS DISMISSED AS INCLUSORY CONCURRENT COUNTS RE FIRST DEGREE MURDER; CROSS EXAMINATION OF A POLICE OFFICER RE EXCESSIVE FORCE PROPERLY PRECLUDED BECAUSE THE ALLEGATIONS WERE NOT RELEVANT TO CREDIBILITY (SECOND DEPT).
SUPREME COURT DID NOT HAVE THE AUTHORITY TO DISMISS THIS FORECLOSURE ACTION PURSUANT TO CPLR 3216 OR CPLR 3215 (SECOND DEPT). ​
EVEN THOUGH THE BANK’S MOTION FOR AN ORDER OF REFERENCE WAS REJECTED AS DEFICIENT, THE MOTION CONSTITUTED INITIATING PROCEEDINGS FOR A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT; THE BANK’S MOTION TO VACATE THE DISMISSAL OF THE COMPLAINT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT). ​
IN THIS SIDEWALK SLIP AND FALL CASE, THE DEFENDANT PROPERTY OWNERS HAD DIED AT THE TIME THE ACTION AGAINST THEM WAS COMMENCED; THAT ACTION WAS A NULLITY; THEREFORE THE MOTION TO AMEND THE COMPLAINT TO SUBSTITUTE THE EXECUTOR SHOULD HAVE BEEN DENIED (SECOND DEPT).
THE FIRE DEPARTMENT BOARD OF WARDENS SHOULD NOT HAVE REMOVED A FIREFIGHTER FROM MEMBERSHIP IN THE VOLUNTEER FIRE DEPARTMENT WITHOUT HOLDING A HEARING PURSUANT TO GENERAL MUNICIPAL LAW 209-L (SECOND DEPT). ​
COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY.

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