Bello v Werner, 2023 NY Slip Op 04989 [220 AD3d 692]

October 4, 2023

Appellate Division, Second Department

[*1]

Michael Bello, Plaintiff,

v

Wesley Werner, Appellant.

Kenneth Cooperstein, Centerport, NY, for appellant.

In an action, inter alia, for the partition and sale of real property, the defendant appeals from an order of the Supreme Court, Nassau County (Christopher G. Quinn, J.), dated April 20, 2021. The order denied the defendant’s unopposed motion to restore the action to the active calendar.

Ordered that the order is reversed, on the law, without costs or disbursements, and the defendant’s motion to restore the action to the active calendar is granted.

It is undisputed that this action was in pre-note of issue status when, due to an apparent administrative error, it was mistakenly marked as settled and disposed in the Supreme Court’s electronic tracking system. As the action was never formally dismissed, the defendant followed the appropriate procedure in moving to restore the action to the active calendar ( see U.S. Bank N.A. v Salem , 191 AD3d 921 , 921-922 [2021]; JPMorgan Chase Bank, N.A. v Mehrnia , 143 AD3d 946 , 947 [2016]; Khaolaead v Leisure Video , 18 AD3d 820 , 821 [2005]). Under the circumstances, the court erred in denying the defendant’s unopposed motion to restore the action to the active calendar ( see Long-Waithe v Kings Apparel Inc. , 10 AD3d 413 , 414 [2004]; Baez v Kayantas , 298 AD2d 416, 416-417 [2002]; Hernandez v City of New York , 290 AD2d 416, 416 [2002]; see also Bank of N.Y. v Arden , 140 AD3d 1099 , 1100 [2016]). Barros, J.P., Chambers, Warhit and Taylor, JJ., concur..