Tejeda v Dyal

Tejeda v Dyal 2015 NY Slip Op 01723 Decided on February 26, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 26, 2015
Gonzalez, P.J., Mazzarelli, Acosta, Moskowitz, DeGrasse, JJ.
14363N 25459/02

[*1] Carmen Tejeda, Plaintiff-Respondent,

v

Cherise M. Dyal, MD, et al., Defendants-Appellants.

Kaufman Borgeest & Ryan, LLP, Valhalla (Adonaid C. Medina of counsel), for appellants.

H. Fitzmore Harris, P.C., New York (Fitzmore Harris of counsel), for respondent.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about June 11, 2012, which granted plaintiff's motion to restore this action to the active trial calendar solely to the extent of granting defendants leave to serve new discovery demands, and directing plaintiff to serve and file a note of issue after complying with the demands, unanimously affirmed, without costs.

As we previously held in reversing the grant of defendants' motion to dismiss this action as abandoned pursuant to CPLR 3404, once the note of issue and certificate of readiness were vacated and the matter struck from the trial calendar, this case reverted to pre-note of issue status, and CPLR 3404 is therefore inapplicable (see Tejeda v Dyal, 83 AD3d 539, 540 [1st Dept], lv dismissed 17 NY3d 923 [2011]). Plaintiff's motion to restore the case to the calendar was properly granted only to the extent of directing her to file a new note of issue and certificate of readiness upon completion of additional discovery, pursuant to the criteria set forth in 22 NYCRR 202.21(f) for reinstating a note of issue that has been vacated.

We note that the motion court denied plaintiff's motion in sum and substance and we reject defendant's request that the motion be denied in its entirety and the complaint dismissed with prejudice. As we previously explained, "[d]efendants' avenues to dismiss this pre-note of [*2]issue case are limited to CPLR 3216 and 22 NYCRR 202.27. The latter is inapplicable to the facts herein, and defendants failed to comply with the preconditions of the former" (Tejeda, 83 AD3d at 540).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 26, 2015

CLERK