Davila v. Galarza

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated July 14, 1994, which granted the defendant’s motion to restore the case to the calendar and, upon doing so, dismissed the complaint for failure to prosecute pursuant to CPLR 3404.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion is denied, and the complaint is reinstated.

Since there is no evidence that a note of issue was filed in the action placing the action on the court’s calendar (see, CPLR 3402), the court…