CPLR 3404 provides that "[a] case in the supreme court or a county court marked 'off' or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute." What about cases in New York City Civil Court? The Second Department recently decided that CPLR 3404 dismissal cannot be applied in such actions. In Chavez v 407 Seventh Ave. Corp., 2007 NY Slip Op 02873, the plaintiff commenced a personal injury action in the Civil Court of the City of New York, Kings County, in 1996. The action appeared on the "ready" trial calendar on May 31, 2001. The plaintiff failed to appear on that date, and the action was "marked off" the calendar. The plaintiff never moved to restore the action to the trial calendar, and in 2004, the defendants made motions to dismiss the action pursuant to CPLR 3404 for failure to prosecute. The Civil Court granted the defendants' motions, and Appellate Term affirmed. However, on appeal to the Second Department, the Court noted that CPLR 3404 by its own terms applied only to actions in the Supreme Court or the County Court. In addition, the Second Department noted that CPLR 3404 conflicted with the provision of the Uniform Rules for the New York City Civil Court governing matters marked off the trial calendar (see 22 NYCRR 208.14[c]), which, unlike CPLR 3404, made no provision for the dismissal of an action that has been marked off the trial calendar. Indeed, the Second Department noted that the Civil Court's rules had previously contained a section which, in language similar to that of CPLR 3404, provided for the automatic dismissal of actions as abandoned if no motion to restore was made within one year after the case was marked off the calendar (see 22 NYCRR former 2900.17). However, that provision was repealed, effective January 6, 1986. And the Civil Court rule which now governed actions stricken from the calendar (see 22 NYCRR 208.14[c]) made no provision for dismissing an action for neglect to prosecute. Thus, the Second Department reasoned that the replacement of a provision authorizing dismissal with a provision that does not authorize dismissal reflected a deliberate choice to omit any authorization for such a dismissal. Accordingly, the Second Department found that CPLR 3404 did not apply to Civil Court actions, and the defendants' motions should have been denied.