Bosco v. De Pitt's Mountain Lodge Inc.

Christ, Acting P. J., Rabin, Hopkins and Benjamin, JJ., concur; Munder, J., dissents and votes to affirm the order, with the following memorandum: I think there was a sufficient showing of merit in plaintiff’s cause of action and excusable inadvertence on her attorney’s part, caused to some extent by the general calendar delay in Suffolk County, and probably also contributed to by the refusal of the named defendants to identify a third possible defendant, who they claim is primarily liable. The presumption of abandonment under CPLR 3404 has here been sufficiently rebutted (Marco v. Sachs, 10 N Y 2d 542).