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Vacation of a Note of Issue Does Not Constitute Marking Off the Calendar/One Year Automatic Dismissal Did Not Apply

In affirming Supreme Court’s granting of plaintiff’s motion to restore a Labor Law action, the Second Department explained that vacating a note of issue does not constitute “marking off” or “striking” from the calendar under CPLR 3404:

CPLR 3404 states, in relevant part:

“[a] case . . . marked off’ or struck from the calendar or unanswered [*2]on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.”

The vacatur of a note of issue, as was done in this case on September 11, 2008, returns the case to pre-note of issue status. It does not constitute a marking “off” or striking the case from the court’s calendar within the meaning of CPLR 3404 … . Thus, contrary to the defendant’s contention, the one-year period under CPLR 3404 for automatic dismissal did not start to run on September 11, 2008, when the note of issue was vacated, and the case was not properly dismissed on that date under CPLR 3404. Accordingly, the plaintiff was not required to establish his entitlement to restoration of the action under that statute… . Montalvo v Mumpus Restorations, Inc, 2013 NY Slip Op 07017, 2nd Dept 10-30-13

 

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