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RESTORATION OF AN ACTION TO THE ACTIVE CALENDAR AFTER FAILURE TO FILE A NOTE OF ISSUE IS AUTOMATIC IF NO 90-DAY NOTICE HAS BEEN SERVED AND NO ORDER OF DISMISSAL HAS BEEN ISSUED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar after plaintiff’s failure to file a note of issue should should have been granted. No 90-day notice had been served and no order of dismissal had been issued:

When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 … . In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue … .

Here, the so-ordered stipulation did not suffice as a predicate notice for dismissal pursuant to CPLR 3216. The restoration of the action to the active calendar should have been automatic. Rosario v Cummins, 2023 NY Slip Op 06547, Second Dept 12-20-23

Practice Point: Here plaintiff failed to file a note of issue by a court-ordered deadline. Restoration of the action to the active calendar is automatic if no 90-day notice has been served and no order of dismissal has been issued.

 

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