
    Roberto Rivera, Appellant, v City of New York, Respondent.
    [738 NYS2d 839]
   Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered November 1, 2000, which denied plaintiff's motion to restore the matter to the court’s active calendar and to permit him to file a Note of Issue, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the motion granted.

Inasmuch as plaintiff never served and filed a note of issue, CPLR 3404 was inapplicable as a basis to dismiss the complaint (see, Johnson v Minskoff & Sons, 287 AD2d 233; see also, Jiles v New York City Tr. Auth., 290 AD2d 307). Counsel’s erroneous notification to the court, in August 1998, that the case had been settled, was the only reason the matter was removed from the court’s list of active cases. Such circumstances can have caused neither prejudice to defendant, since its own files would clearly reflect the state of the litigation, nor any other appropriate basis for a denial of the motion to restore. In light of the strong public policy of allowing cases to be decided on their merits (see, Silverio v City of New York, 266 AD2d 129), it was improvident to deny plaintiffs motion. Concur — Nardelli, J.P., Saxe, Sullivan, Wallach and Friedman, JJ.  