U.S. Bank Nat'l Ass'n v. Madero

• Decision Date: 11 October 2017
• Citation: 154 A.D.3d 795,61 N.Y.S.3d 504 (Mem)
• Parties: US BANK NATIONAL ASSOCIATION, as trustee, respondent, v. Miguel MADERO, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 795

61 N.Y.S.3d 504 (Mem)

US BANK NATIONAL ASSOCIATION, as trustee, respondent,

v.Miguel MADERO, et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 11, 2017.

DeGuerre Law Firm, P.C., Staten Island, NY (Anthony DeGuerre of counsel), for appellants.

Hogan Lovells U.S. LLP, New York, NY (Lisa J. Fried, Chava Brandriss, and Ryan Sirianni of counsel), for respondent.

Appeal by the defendants Miguel Madero and Martha Madero from an order of the Supreme Court, Richmond County (Desmond A. Green, J.), dated November 14, 2016. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was to restore the action to the active calendar.

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

The Supreme Court properly granted that branch of the plaintiff's motion which was to restore the action to the active calendar. CPLR 3404 does not apply to this pre-note of issue action (see WM Specialty Mtge., LLC v. Palazzollo, 145 A.D.3d 714, 715, 41 N.Y.S.3d 899 ; Countrywide Home Loans, Inc. v. Gibson, 111 A.D.3d 875, 875–876, 976 N.Y.S.2d 142 ; Rakha v. Pinnacle Bus Servs., 98 A.D.3d 657, 658, 949 N.Y.S.2d 769 ; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 198, 725 N.Y.S.2d 57 ). Further, there was neither a 90–day notice pursuant to CPLR 3216, nor an order dismissing the complaint pursuant to 22 NYCRR 202.27 (see Arroyo v. Board of Educ. of City of N.Y., 110 A.D.3d 17, 970 N.Y.S.2d 229 ; Rakha v. Pinnacle Bus Servs., 98 A.D.3d at 658, 949 N.Y.S.2d 769 ).

The appellants' remaining contention is without merit.

RIVERA, J.P., HALL, ROMAN and CHRISTOPHER, JJ., concur.