Rivera v. City of New York

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered November 1, 2000, which denied plaintiff's motion to restore the matter to the court’s active calendar and to permit him to file a Note of Issue, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the motion granted.

Inasmuch as plaintiff never served and filed a note of issue, CPLR 3404 was inapplicable as a basis to dismiss the complaint (see, Johnson v Minskoff & Sons, 287 AD2d 233; see also, Jiles v New York City Tr. Auth., 290 AD2d 307). Counsel’s erroneous notification to the…