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Maharaj v. LaRoche

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 12, 2010

RASHIEDA MAHARAJ, APPELLANT,
v.
DANIEL LAROCHE, ET AL., RESPONDENTS.

In an action to recover damages for defamation and intentional infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Kings County (Balter, J.), dated December 9, 2008, which denied her motion to restore the action to the calendar.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., ANITA R. FLORIO, RUTH C. BALKIN, ARIEL E. BELEN and LEONARD B. AUSTIN, JJ.

(Index No. 48819/99)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs payable by the respondents, and the motion to restore the action to the calendar is granted.

The plaintiff moved to restore this action to the calendar after it was, in effect, dismissed pursuant to CPLR 3216 for failure to file a timely note of issue pursuant to a compliance order dated April 15, 2008. Notably, the compliance order specifically advised that it did not constitute a CPLR 3216 notice. Thus, the order could not be deemed a 90-day demand to file a note of issue, which is a precondition to dismissal under CPLR 3216 (see CPLR 3216[b][3]; Ratway v Donnenfeld, 43 AD3d 465; Heifetz v Godoy, 38 AD3d 605; Murray v Smith Corp., 296 AD2d 445, 447). Accordingly, the plaintiff's motion to restore the action to the calendar should have been granted.

SKELOS, J.P., FLORIO, BALKIN, BELEN and AUSTIN, JJ., concur.

20100112

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