Thompkins v Ortiz

Thompkins v Ortiz 2018 NY Slip Op 06503 Decided on October 2, 2018 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 October 2, 2018
Renwick, J.P., Gische, Kahn, Kern, Moulton, JJ.
16188/06 7222N 7221

[*1] Farah A. Thompkins, Plaintiff-Appellant,

v

Belkis . Ortiz, Defendant-Respondent.

Sheryl R. Menkes, New York, for appellant.

Marjorie E. Bornes, Brooklyn, for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about June 23, 2017, which denied plaintiff's motion to restore the case to the trial calendar, unanimously reversed, on the law, without costs, and the motion granted. Appeal from order, same court and Justice, entered on or about August 30, 2017, which denied plaintiff's motion for leave to renew and reargue, unanimously dismissed, without costs, as academic.

Plaintiff challenges the applicability of CPLR 3404, on which the motion court apparently relied in denying her motion to restore the case to the calendar, for the first time on appeal. Since it is a legal argument that appears on the face of the record and could not have been avoided if brought to defendant's attention at the proper juncture, we will review it (see Chateau d'If Corp. v City of New York, 219 AD2d 205, 209 [1st Dept 1996], lv denied 88 NY2d 811 [1996]).

The order that marked the case off the calendar directed plaintiff to provide additional discovery. It thus effectively vacated the note of issue and returned the case to pre-note of issue status (see Matos v City of New York, 154 AD3d 532 [1st Dept 2017]). As CPLR 3404 does not apply to cases in which either no note of issue has been filed or the note of issue has been vacated (Turner v City of New York, 147 AD3d 597 [1st Dept 2017]), it does not apply to this case.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 2, 2018

CLERK