The Second Department granted plaintiffs' motion to restore the action to active status and to extend their time to serve and file a note of issue, even though, six months earlier, a certification order provided for dismissal if plaintiffs failed to file a note of issue within 30 days, in Ratway v. Donnenfeld, which was decided on August 21, 2007.

The court said that the certification order did not constitute a 90-day demand pursuant to CPLR 3216 since it gave the plaintiffs only 30 days within which to file the note of issue, and so, with that failure of a condition precedent, the action could not have been dismissed. The court noted that, since plaintiffs were not moving to reinstate the note of issue, they were not required to demonstrate a meritorious action pursuant to 22 NYCRR 202.21[f]).