
    Raul Badillo, Respondent, v Sheepshead Restaurant Associates, Inc., Appellant. (And a Third-Party Action.)
    [745 NYS2d 491]
   In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated April 20, 2001, as granted that branch of the plaintiffs motion which was to “restore” the action and denied that branch of its cross motion which was to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

Before a note of issue was filed, the case was marked “inactive” when the plaintiff failed to appear at a scheduled discovery conference. Since no note of issue had been filed, the action was not subject to dismissal pursuant to CPLR 3404 (see Murray v Smith Corp., 286 AD2d 377; Lopez v Imperial Delivery Serv., 282 AD2d 190; P. Cubed Enters. v Roach, 265 AD2d 537). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs motion which was to “restore” the action and properly denied that branch of the defendant’s cross motion which was to dismiss the complaint. Altman, J.P., Smith,. Krausman, McGinity and Cozier, JJ., concur.  