In Andre v. Bonetto Realty Corp., 32 A.D. 3rd 973 (2nd Dept. 2006) the trial court denied plaintiff's motion to restore its pre Note of Issue case to active status, after it's Note of Issue had been withdrawn and approximately one year had elapsed. Defendants moved to dismiss the matter pursuant to 3404, and the trial court granted defendant's motion. The Second Department held that 3404 was inapplicable to "pre-note of issue cases" and that in the absence of a 90 day notice, restoration to active status was automatic.