State of New York Supreme Court, Appellate Division Third Judicial Department
June 25, 2009
KIMBERLY M. FRANJIEH, INDIVIDUALLY AND ON BEHALF OF JOSEPH M. FRANJIEH, AN INFANT, ET AL., RESPONDENTS,
JOSEPH GERARDI, APPELLANT.
The opinion of the court was delivered by: Lahtinen, J.
MEMORANDUM AND ORDER
Calendar Date: April 21, 2009
Before: Spain, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ.
Appeal from an order of the Supreme Court (Connolly, J.), entered May 22, 2008 in Albany County, which, among other things, denied defendant's motion to dismiss the complaint for failure to prosecute.
This medical malpractice action, which includes a claim on behalf of an infant, was commenced in 2000. On the day jury selection was to begin in 2005, plaintiffs' attorneys submitted a motion to Supreme Court (Spargo, J.), seeking to be relieved as counsel. Supreme Court (Doyle, J.) granted that motion in December 2006 and provided plaintiffs with 60 days to obtain new counsel. No apparent effort was made to pursue the claim and defendant sought dismissal of the action in February 2008 pursuant to CPLR 3404 or 3216. Supreme Court (Connolly, J.) denied the motion and this appeal ensued.
We affirm. Where, as here, a note of issue has been filed, CPLR 3216 is inapplicable (see Schmidt v Mack, 46 AD3d 1205, 1206 ). Although CPLR 3404 authorizes the clerk to make the appropriate entry dismissing abandoned cases without the necessity of an order in post-note of issue situations, that statute only applies when a case has been struck from the calendar or gone unanswered on a clerk's calendar call (see CPLR 3404; Schmidt v Mack, 46 AD3d at 1206). This record does not reveal that the case was struck or unanswered and, in fact, defendant admits to being informed by the Supreme Court Clerk's office that the case is currently considered "active."
Spain, J.P., Malone Jr., Stein and Garry, JJ., concur.
ORDERED that the order is affirmed, without costs.
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