Small v. New York City Health & Hospitals Corp. , 760 N.Y.S.2d 339 ( 2003 )

—In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated November 1, 2002, which denied her motion to restore the action to the trial calendar pursuant to CPLR 3404.

Ordered that the plaintiff’s notice of appeal from a decision of the same court, dated January 16, 2002, is deemed to be a premature notice of appeal from the order dated November 1, 2002 (see CPLR 5520 [c]); and it is further,

Ordered that the order is reversed, on the law, the motion is granted, and the action is restored to the trial calendar; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff moved to restore this action pursuant to CPLR 3404 within one year after it was marked off the trial calendar, and there is no evidence in the record that any definite conditions for restoration were imposed when the action was marked off. Accordingly, the plaintiff was entitled to automatic restoration (see Basetti v Nour, 287 AD2d 126, 134-135 [2001]; see also Maragos v Getty Petroleum Corp., 303 AD2d 652 [2003]; Williams v Bergen Beach Stable, 300 AD2d 655 [2002]; Acheson v Shepard, 297 AD2d 271 [2002]; Litras v Litras, 293 AD2d 655 [2002]; cf. D’Ecclesiis v Manna, 289 AD2d 522 [2001]). Florio, J.P., Krausman, Goldstein and Townes, JJ., concur.