Statman v. Yavne

In an action to foreclose a mortgage, the plaintiffs appeal from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated February 23, 2004, which denied their motion pursuant to CPLR 5015 (a) to vacate an order of the same court dated January 8, 2003, granting the defendants’ motion to dismiss the complaint pursuant to CPLR 3404, upon the plaintiffs’ default in opposing the motion.

Ordered that the order dated February 23, 2004, is reversed, on the law, with costs, the motion to vacate the order dated January 8, 2003, is granted, the order dated January 8, 2003, is vacated, and the motion to dismiss the complaint is denied.

“CPLR 3404 should be reserved strictly for cases that have reached the trial calendar” (Lopez v Imperial Delivery Serv., 282 AD2d 190, 199 [2001]). Accordingly, since the present action was never placed on the trial calendar, the Supreme Court erred in granting the defendants’ motion to dismiss the action pursuant to CPLR 3404. Altman, J.P., Goldstein, Schmidt, Cozier and Skelos, JJ, concur.