Sherman v. American Yard Products, Inc. , 760 N.Y.S.2d 320 ( 2003 )

—Order, Supreme Court, New York County (Louis York, J.), entered October 25, 2002, which denied defendant’s motion to deem the action dismissed for failure to prosecute, and denied plaintiffs cross motion to restore the action to “active status,” unanimously modified, on the law, to grant plaintiffs cross motion, and otherwise affirmed, without costs.

Defendant’s motion to dismiss based on plaintiffs failure to restore the action to a pre-note-of-issue calendar and other delay in prosecuting the action was properly denied on the ground that no CPLR 3216 notice was ever served (see Jiles v New York City Tr. Auth., 290 AD2d 307 [2002]). However, plaintiffs cross motion to restore the case to active status should have been granted at least to the extent of acknowledging that prior to the filing of a note of issue, a case cannot be regarded as “inactive,” and that future proceedings initiated by the parties to ready the action for trial would be entertained (see id.). Any prejudice caused to defendant by the delay could have been avoided by service of a CPLR 3216 notice (see id.). Concur — Mazzarelli, J.P., Ellerin, Williams, Lerner and Gonzalez, JJ.