Marion Miller et al., Appellants, v. Jim Duffy et al., Respondents

Marion Miller et al., Appellants, v Jim Duffy et al., Respondents. [725 NYS2d 899] [MAJORITY] —In an action for specific performance of an option to purchase a cooperative apartment, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated December 22, 1999, as denied that branch of their motion which was to restore the action. Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiffs’ motion which was to restore the action is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith. When the plaintiffs failed to appear at a scheduled pretrial conference, the action was marked “off” and ultimately dismissed pursuant to CPLR 3404. In the order appealed from, the Supreme Court, inter alia, denied that branch of the plaintiffs’ motion which was to restore the action. We reverse insofar as appealed from. For the reasons stated in Lopez v Imperial Delivery Serv. (282 AD2d 190), CPLR 3404 is not applicable because the action was not on the trial calendar. Thus, that branch of the plaintiffs’ motion which was to restore the action is granted. Ritter, J. P., Goldstein, S. Miller and Smith, JJ., concur.