Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Tinter

—Order, *114Supreme Court, New York County (Beverly Cohen, J.), entered January 14, 1993, which granted plaintiffs motion to restore this case to the trial calendar, unanimously affirmed, with costs.

The May 1990 "restoration” of the case to Justice Cohen’s calendar did not involve a CPLR 3404 issue because the matter had never actually been "marked off’ the trial calendar (Denver v American Home Prods. Corp., 138 AD2d 670, 671).

Such an issue was raised when, following Justice Cohen’s "marking off’ of the case in either November 1990 or January 1991 to allow defendant to obtain new counsel, more…