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HERE PLAINTIFF DID NOT FILE A NOTE OF ISSUE BY THE COURT-ORDERED DEADLINE BUT NO NINETY-DAY NOTICE HAD BEEN SERVED AND THERE HAD BEEN NO ORDER DISMISSING THE COMPLAINT; NO EXCUSE FOR THE DELAY IS NECESSARY, THERE IS NO SPECIFIC TIME FRAME FOR A MOTION TO RESTORE, AND RESTORATION TO THE ACTIVE CALENDAR IS AUTOMATIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. Even though plaintiff had failed to file a note of issue by a court-ordered deadline, no CPLR 3216 ninety-day notice had been served and there had been no order directing dismissal of the complaint. Therefore plaintiff need not provide an excuse for the delay. Restoration to the calendar was automatic and there was no specific time frame for the motion to restore:

“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” … . “Under these circumstances, a motion to restore the action to the calendar should be granted without considering whether the plaintiff had a reasonable excuse for the delay or . . . engaged in dilatory conduct” … . Further, “CPLR 3404 d[oes] not apply . . . to . . . pre-note of issue” actions … . “[S]ince this action was pre-note of issue and could not properly be marked off the calendar pursuant to CPLR 3404, the plaintiff was not required to move to restore the action to the calendar within any specified time frame” … . Tarasiuk v Levoritz, 2025 NY Slip Op 04592, Second Dept 8-6-25

Practice Point: Although plaintiff did not file a note of issue by the court-ordered deadline, because there had been no ninety-day demand and no court order dismissing the complaint, restoration to the active calendar was automatic.

 

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