Opinion
April 19, 1993
Appeal from the Supreme Court, Westchester County (Nicolai, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
We agree with the Supreme Court that the action should not have been dismissed pursuant to CPLR 3404, which, inter alia, directs the clerk to automatically dismiss a case which has been stricken from the trial calendar and not restored thereto within a year of the dismissal (see, 4 Weinstein-Korn-Miller, N Y Civ Prac ¶ 3404.01; Balducci v Jason, 133 A.D.2d 436; see also, CPLR 3402).
In this medical malpractice action, the plaintiffs inadvertently filed a note of issue even though they were not required to do so by the court's discovery scheduling order and even though a note of issue could not, under the Uniform Rules for Trial Courts then applicable, have been permissibly filed at the time since the medical malpractice panel proceedings had not yet been commenced (see, 22 N.Y.CRR former 202.56 [d] [2]).
Since the plaintiffs' note of issue was inadvertently and prematurely filed and since the case could not have been permissibly placed on the trial calendar at that juncture in any event, the Supreme Court properly concluded that the subsequent striking of the note of issue was not attributable to an act or omission in the nature of a default within the meaning of CPLR 3404, and vacated the dismissal which had been obtained by the defendants (see, Balducci v Jason, 133 A.D.2d 436, supra; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3404:4, at 76). Thompson, J.P., Rosenblatt, Miller and Pizzuto, JJ., concur.