On December 20, 2023, the Second Department issued a decision in Rosario v. Cummins, 2023 NY Slip Op. 06547, holding that the trial court erred in dismissing a case for failure to file a Note of Issue because the procedural requisites were not met, explaining:
When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27. In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue.
Here, the so-ordered stipulation did not suffice as a predicate notice for dismissal pursuant to CPLR 3216. The restoration of the action to the active calendar should have been automatic. Consequently, it was error for the Supreme Court to deny those branches of the plaintiff’s motion which were to restore the action to the active calendar and to extend the time to file a note of issue under those circumstances.
(Internal quotations and citations omitted).