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WHERE PLAINTIFF HAS FAILED TO FILE A NOTE OF ISSUE BY A COURT-ORDERED DEADLINE, RESTORATION TO THE ACTIVE CALENDAR IS AUTOMATIC WHERE NO 90-DAY NOTICE HAD BEEN SERVED AND THERE HAD BEEN NO COURT-ORDERED DISMISSAL (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 plaintiff had failed to file a note of issue by the court-ordered deadline, no 90-day notice had been served nor had the court ordered dismissal of the action:

“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” … . Adams v Frankel, 2025 NY Slip Op 00939, Second Dept 2-19-25

Practice Point: Where plaintiff fails to fails to file a note of issue by the court-ordered deadline, restoration of the action to the active calendar is automatic where no 90-day notice has been served and dismissal has not been ordered by the court.

 

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