Deltejo v. St. Nicholas Venture Inc. , 886 N.Y.S.2d 606 ( 2009 )

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about March 16, 2009, which dismissed the action as abandoned, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the complaint reinstated.

Appellate review of the dismissal of an action is normally available only after the grant of a motion for such relief, or the denial of a motion to vacate or modify the dismissal order. Because the dismissal order, under CPLR 3404, did not result from an order on notice, it is not appealable as of right. However, we deem the notice of appeal to be a motion for leave to appeal, and exercise our discretion (CPLR 5701 [c]) to grant leave and consider the merits of this appeal (see Jun-Yong Kim v A&J Produce Corp., 15 AD3d 251 [2005]; Mulligan v New York Cornell Med. Ctr., 304 AD2d 492 [2003]).

The matter is restored to the trial calendar without prejudice to defendants’ seeking preclusion relief. It is apparent that another Justice on a prior motion for restoration had intended that the matter go to trial, and that if plaintiff could not produce certain medical evidence, defendants’ remedy would be issue preclusion, not an order striking the complaint. Defendants argue that the prior order was wrongly decided and the motion to restore should have been denied outright. However, defendants did not appeal from that order, and in any event, their argument is without merit (see Burgos v 2915 Surf Ave. Food Mart, 298 AD2d 282 [2002]). Concur—Mazzarelli, J.P., Andrias, Moskowitz, Renwick and Richter, JJ.