Goldstein v Silverstein, 2011 NY Slip Op 07921 [89 AD3d 497]

November 10, 2011

Appellate Division, First Department

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Law Offices of Daniel A. Thomas, P.C., New York (Daniel A. Thomas of counsel), for appellants.

Dwyer & Taglia, New York (Peter R. Taglia of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about July 1, 2010, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ motion to vacate the dismissal of this medical malpractice action and restore the action to the trial calendar, deemed appeal from judgment, same court and Justice, entered September 13, 2010, dismissing the complaint (CPLR 5501 [c]), and, so considered, the judgment unanimously affirmed, without costs.

Plaintiffs improperly argue for the first time on appeal that dismissal of the action pursuant to CPLR 3404 was incorrect because the striking of the action from the trial calendar had returned the case to its pre-note of issue status ( see Nieman v Sears, Roebuck & Co. , 4 AD3d 255 , 255 [2004]). Plaintiffs neither made a motion to restore the matter to the calendar within one year nor proffered an affidavit demonstrating that he had a meritorious cause of action. Concur—Tom, J.P., Andrias, Freedman and Richter, JJ..