Fifth Third Mortgage Company v. Anthony Schiro

Summary

The Appellate Division, Second Department, reversed an order denying Fifth Third Mortgage Company's motion to restore a pre-note-of-issue action to the court's calendar. The court held that restoration was automatic because the case had been marked inactive without a CPLR 3216 notice or an order directing dismissal, and that the motion was not subject to a specified time limit.

Holdings

1. When a case is marked inactive before a note of issue is filed, without a CPLR 3216 90-day notice and without an order dismissing the complaint under 22 NYCRR 202.27, restoration to the calendar is automatic.
2. The court need not consider whether the plaintiff had a reasonable excuse for delay or engaged in dilatory conduct when restoring a case marked inactive under these circumstances.
3. The motion to restore was not untimely because the action was pre-note of issue and could not properly be marked off the calendar pursuant to CPLR 3404; therefore, no specified time limit required the motion to be brought.

Questions Presented

1. Whether restoration of a pre-note-of-issue action marked inactive before a note of issue was filed is automatic when there was no CPLR 3216 90-day notice and no dismissal order under 22 NYCRR 202.27.
2. Whether the plaintiff's motion to restore was untimely because it was brought more than a specified period after the action was marked off the calendar.
3. Whether the plaintiff was required to establish a reasonable excuse for delay or lack of dilatory conduct in seeking restoration.

Disposition

reversed