123X Corp. v. McKenzie

• Court: New York Supreme Court — Appellate Division
• Citation: 123X Corp. v. McKenzie, 7 A.D.3d 769, 776 N.Y.S.2d 893, 2004 NY Slip Op 4165 (N.Y. App. Div. 2004)
• Decision Date: 24 May 2004
• Docket Number: 2003-03195.
• Parties: 123X CORP., Respondent, v. BEVERLY A. McKENZIE et al., Appellants.

7 A.D.3d 769

776 N.Y.S.2d 893

2004 NY Slip Op 04165

123X CORP., Respondent, v. BEVERLY A. McKENZIE et al., Appellants.

2003-03195.

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 24, 2004.

In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated February 26, 2003, which granted the plaintiff's motion to "restore" the action to the calendar and denied their cross motion to dismiss the action.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the plaintiff's motion to "restore" this action after it had been marked inactive due to the parties' failure to appear at a status conference. CPLR 3404 does not apply to this pre-note of issue action (see Lopez v Imperial Delivery Serv., 282 AD2d 190 [2001]), there was no 90-day notice pursuant to CPLR 3216, and there was no order dismissing the complaint pursuant to 22 NYCRR 202.27. Accordingly, the motion was properly granted (see Lucious v Rutland Nursing Home of Kingsbrook Jewish Med. Ctr., 2 AD3d 412 [2003]; Gendus v Sheraton/Atl. City W., 302 AD2d 427 [2003]; Torres v Nu-Way Mach. Corp. Co., 296 AD2d 545 [2002]; Farley v Danaher Corp., 295 AD2d 559 [2002]).

The defendants' remaining contention is without merit.

Santucci, J.P., Smith, Luciano and Adams,...