Turner v City of New York, 2017 NY Slip Op 01323 (1st Dept. 2017)
“The motion court erred in dismissing the negligence action pursuant to CPLR 3404. When the action was removed from the trial calendar, the court indicated that it should be continued as a pre-note of issue case. CPLR 3404 does not apply to cases in which no note of issue has been filed or the note of issue has been vacated”
The question on these cases always becomes why was the case removed from the calendar. Was it removed due to discovery issues? (3404 does not apply). Was it removed because the parties were not prepared for trial? (3404 applies). Or was the case expressly deemed to be “pre-note” (3404 does not apply)
