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WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined that CPLR 3404, which deems an action abandoned if not restored within a year of being marked off or struck from the calendar, does not apply to cases where a note of issue was filed but subsequently was vacated. The 1st and 2nd Department adhere to this view, the 3rd Department does not:

In accordance with the tenor and spirit of our existing case law, we now explicitly adopt the 1st and 2nd Departments’ rule, and reject the 3rd Department’s. It is axiomatic that CPLR 3404 has no applicability in the absence of an extant and valid note of issue … , and we agree with the Second Department that “[t]he vacatur of a note of issue . . . returns the case to pre-note of issue status [and] does not constitute a marking off’ or striking the case from the court’s calendar within the meaning of CPLR 3404” … . To state the obvious, a note of issue does not survive its own vacatur, and it makes no sense to apply CPLR 3404 when the statute’s operative premise—i.e., the continuing vitality of the note of issue—no longer exists. Bradley v Konakanchi, 2017 NY Slip Op 08125, Fourth Dept 11-17-17

CIVIL PROCEDURE (WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))/CPLR 3403 (WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))/NOTE OF ISSUE  (WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))/ABANDONMENT (CPLR 3404, WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY IS VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT))

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