Tejeda v. Dyal , 920 N.Y.S.2d 662 ( 2011 )

Judgment, Supreme Court, Bronx County (Edgar G. Walker, J.), entered October 6, 2009, dismissing the complaint alleging medical malpractice, and bringing up for review an order, same court and Justice, entered July 15, 2009, which granted defendants’ motion to dismiss the complaint pursuant to CPLR 3404, unanimously reversed, on the law, without costs, the judgment vacated, and the motion denied.

Dismissal of this action pursuant to CPLR 3404 was improper. Here, when the note of issue was previously vacated, the case reverted to its pre-note of issue status, thereby rendering CPLR 3404 inapplicable (see Sellitto v Women’s Health Care Specialists, 58 AD3d 828 [2009]; Johnson v Minskoff & Sons, 287 AD2d 233 [2001]). Defendants’ avenues to dismiss this pre-note of issue case are limited to CPLR 3216 and 22 NYCRR 202.27. The latter is inapplicable to the facts herein, and defendants failed to comply with the preconditions of the former (see Johnson at 237-238). Concur—Andrias, J.P., Saxe, Moskowitz, Richter and Manzanet-Daniels, JJ.