Odom v New York City Tr. Auth. (2004 NY Slip Op 05423)

Odom v New York City Tr. Auth.

2004 NY Slip Op 05423 [8 AD3d 542]

June 21, 2004

Appellate Division, Second Department

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

As corrected through Wednesday, August 25, 2004

Janie Odom, Respondent,
v
New York City Transit Authority, Appellant.

—[*1]

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated July 10, 2003, which granted the plaintiff's motion for leave to file a late note of issue.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant's contention, the precalendar order did not contain a 90-day demand pursuant to CPLR 3216. Therefore, the court could not dismiss the action based on neglect to prosecute pursuant to CPLR 3216 (see O'Connell v City Wide Auto Leasing, 6 AD3d 682 [2004]; Akpinar v John Hancock Mut. Life Ins. Co., 302 AD2d 337 [2003]; Murray v Smith Corp., 296 AD2d 445, 447 [2002]). Accordingly, the Supreme Court properly granted the plaintiff's motion for leave to file a late note of issue. Florio, J.P., Krausman, Townes, Mastro and Fisher, JJ., concur.