Lucious v. Rutland Nursing Home , 767 N.Y.S.2d 792 ( 2003 )

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated May 3, 2002, which granted the plaintiffs motion to “restore” the action to active status.

Ordered that the order is affirmed, with costs.

Contrary to the defendants’ contention, CPLR 3404 does not apply to this pre-note of issue case (see Lopez v Imperial Delivery Serv., 282 AD2d 190 [2001]). Furthermore, there was no 90-day notice pursuant to CPLR 3216, nor was there an order dismissing the complaint pursuant to 22 NYCRR 202.27. Accordingly, the Supreme Court properly granted the plaintiffs motion to “restore” the action to active status (see Torres v Nu-Way Mach. Corp. Co., 296 AD2d 545 [2002]; Johnson v Brooklyn Hosp. Ctr., 295 AD2d 567 [2002]; Farley v Danaher Corp., 295 AD2d 559 [2002]). Florio, J.P., S. Miller, Townes and Mastro, JJ., concur.