Wynn v. Wynn-Wright

201 A.D.3d 1017

157 N.Y.S.3d 778 (Mem)

William H. WYNN, etc., et al., appellants,

v.Nina WYNN–WRIGHT, et al., defendants,Household Finance Realty Corporation of New York, respondent.

2019–05175

Index No. 18690/04

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 21, 2021

January 26, 2022

McKinley Onua & Associates, PLLC, Brooklyn, NY (Nnenna Onua of counsel), for appellants.

Phillips Lytle LLP, Buffalo, NY (Preston L. Zarlock and Chad W. Flansburg of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, ROBERT J. MILLER, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action, inter alia, for a judgment declaring a certain deed null and void, the plaintiffs appeal from an order of the Supreme Court, Kings County (Lizette Colon, J.), dated February 26, 2019. The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was to restore the action to the active calendar.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs’ motion which was to restore the action to the active calendar is granted.

The plaintiffs commenced this action, inter alia, for a judgment declaring a certain deed null and void. In November 2017, the plaintiffs moved, among other things, to extend their time to file a note of issue. Subsequently, this action was administratively dismissed on December 26, 2017, for failure to file a note of issue, and the plaintiffs’ motion was "marked off" the calendar on January 10, 2018. On or about January 31, 2019, the plaintiffs moved, inter alia, to restore the action to the active calendar. In an order dated February 26, 2019, the Supreme Court denied the plaintiffs’ motion on the ground that they had failed to move to restore the action within the one-year time limit of CPLR 3404. The plaintiffs appeal.

CPLR 3404 does not apply to this pre-note of issue action (see Guillebeaux v. Parrott, 188 A.D.3d 1017, 1017, 132 N.Y.S.3d 691 ; Finamore v. David Ullman, P.C., 179 A.D.3d 642, 644, 116 N.Y.S.3d 357 ). Since the action could not properly be marked off pursuant to CPLR 3404, the plaintiffs were "not required to move to restore within any specified time frame" ( Deutsche Bank Natl. Trust Co. v. Gambino, 181 A.D.3d 558, 560, 121 N.Y.S.3d 90 ; see Bank of N.Y. v. Arden, 140 A.D.3d 1099, 1100, 35 N.Y.S.3d 388 ). Further, there was neither a 90–day demand pursuant to CPLR 3216 (see Deutsche Bank Natl. Trust Co. v. Gambino, 181 A.D.3d at 560, 121 N.Y.S.3d 90 ; Islam v. Destefano, 176 A.D.3d 1189, 1190, 111 N.Y.S.3d 328 ; see also HSBC Bank USA, N.A. v. Garnes, 186 A.D.3d 1620, 129 N.Y.S.3d 819 ), nor an order dismissing the action pursuant to 22 NYCRR 202.27 (see U.S. Bank N.A. v. Salem, 191 A.D.3d 921, 922, 138 N.Y.S.3d 382 ; Deutsche Bank Natl....