Torres v. NU-WAY MACHINERY CORPORATION CO., LTD.

• Court: New York Supreme Court — Appellate Division
• Citation: Torres v. NU-WAY MACHINERY CORPORATION CO., LTD., 296 A.D.2d 545, 745 N.Y.S.2d 703 (N.Y. App. Div. 2002)
• Decision Date: 22 July 2002
• Parties: LUIS TORRES et al., Appellants,<BR>v.<BR>NU-WAY MACHINERY CORPORATION CO., LTD., et al., Respondents.

296 A.D.2d 545

745 N.Y.S.2d 703

LUIS TORRES et al., Appellants,

v.NU-WAY MACHINERY CORPORATION CO., LTD., et al., Respondents.

Decided July 22, 2002.

Ritter, J.P., Feuerstein, Adams and Rivera, JJ., concur.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to "restore" the action is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

The Supreme Court erred when it denied the plaintiffs' motion to restore this action. This Court has held that CPLR 3404 was inapplicable to pre-note of issue cases (see Lopez v Imperial Delivery Serv., 282 AD2d 190), there was no 90-day notice served upon the plaintiffs permitting dismissal pursuant to CPLR 3216, nor was there any order issued dismissing the plaintiffs' complaint due to a default in appearing at a dulyscheduled status conference pursuant to 22 NYCRR 202.27. Accordingly, there was no...