In Arroyo v. Board of Education of City of New York, 110 AD3d 17, 970 N.Y.S.2d 229 [2nd Dept. 2013], the case was "marked off" the calendar for plaintiff's counsel's failure to appear at a conference.
Twelve years later, plaintiff attempted to resurrect the action by moving to restore the case to the pre-note of issue calendar.
Defendant cross moved to dismiss.
On reargument of its original decision and order which denied plaintiff's motion to restore and granted the Board of Education's motion to dismiss, Supreme Court reversed itself and granted plaintiff's motion to restore and denied the defendant's motion to dismiss.
On appeal, the Second Department, relying on Lopez v. Imperial Delivery Serv., 282 AD2d 190, 725 N.Y.S.2d 57 [2nd Dept 2001] and the exhaustive review of calendar control devices therein, affirmed.
In so doing the Court reaffirmed that neither of the two CPLR provisions relating to calendar control, CPLR 3404 and CPLR 3216, nor Court Rule 202.27 mandated dismissal of a pre-note of issue action for non appearance at a conference even after lengthy delay.