Ranger Insurance v. Smith

In a subrogation action to recover insurance benefits paid to the plaintiffs insured, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), dated July 13, 2001, as granted that branch of the plaintiffs motion which was to “restore” the action to the calendar.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendants’ contention, the plaintiff was not required to meet the standards applicable to a party seeking to restore an action to the trial calendar after it has been dismissed pursuant to CPLR 3404. Since there is no evidence that a note of issue placing the action on the trial calendar was filed (see CPLR 3402), the action could not be dismissed pursuant to CPLR 3404 (see Murray v Smith Corp., 286 AD2d 377; Cioffi v Kennedy, 284 AD2d 491; Lopez v Imperial Delivery Serv., 282 AD2d 190, 193). Therefore, the Supreme Court properly granted that branch of the plaintiff’s motion which was to “restore” the action to the calendar. Ritter, J.P., Florio, Goldstein and Cozier, JJ., concur.