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IF THE NOTE OF ISSUE HAS BEEN VACATED, THE CPLR 3404 REQUIREMENTS FOR RESTORING THE ACTION TO THE CALENDAR DO NOT APPLY; THERFORE THE MOTION TO RESTORE NEED NOT BE MADE WITHIN A YEAR AND NEED NOT DEMONSTRATE A MERITIORIOUS CAUSE OF ACTION, REASONABLE EXCUSE, NO INTENT TO ABANDON, AND LACK OF PREJUDICE TO DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. Although the action had been stricken from the trial calendar more than a year before, the requirements of CPLR 3404 (demonstration of a meritorious cause of action, reasonable excuse, no intent to abandon and lack of prejudice to defendant) did not apply because the note of issue had been vacated:

Supreme Court erred in denying the plaintiff’s renewed motion to restore the action to the active calendar. While a party moving to restore an action more than one year after it was stricken from the trial calendar pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant … , CPLR 3404 did not apply here because the case reverted to its pre-note of issue status once the note of issue was vacated … . “[S]ince this action could not properly be marked off pursuant to CPLR 3404, the plaintiff was not obligated to move to restore within any specified time frame,” or to establish his entitlement to restoration of the action under the standard applicable to automatic dismissals pursuant to CPLR 3404 … . Thus, in the absence of a 90-day demand pursuant to CPLR 3216, the plaintiff’s renewed motion should have been granted … . Insuasti v La Boom Disco, Inc., 2022 NY Slip Op 05684, Second Dept 10-12-22

Practice Point: Once an action has been stricken from the trial calendar, CPLR 3404 requires that a motion to restore be made within a year and demonstrate a meritorious cause of action, reasonable excuse, no intent to abandon, and lack of prejudice to defendant. However, CPLR 3404 does not apply where, as here, the note of issue has been vacated and no 90-day demand pursuant to CPLR 3216 has been made.

 

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