Cordero v. Singh (295 A.D.2d 154, 2002)

—Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about May 7, 2001, which granted plaintiffs motion to restore the action to the compliance calendar, unanimously affirmed, without costs.

Since no note of issue has been filed in this case, defendants, or the court, could have served a 90-day demand to file a note of issue pursuant to CPLR 3216. A motion to dismiss pursuant to CPLR 3404, however, applies only to delay after a note of issue has been filed (see, Johnson v Sam Minskoff & Sons, 287 AD2d 233; Lopez v Imperial Delivery Serv., 282 AD2d 190, lv dismissed 96 NY2d 937). Under the circumstances, we perceive no reason to disturb the motion court’s exercise of discretion in restoring the case to the court’s compliance calendar. Concur— Nardelli, J.P., Mazzarelli, Buckley, Sullivan and Marlow, JJ.