CCS Communication Control, Inc. v. Patent

—Order, Supreme Court, New York County (Walter Schackman, J.), entered October 20, 1992, which, inter alia, denied defendants’ motion seeking to vacate the plaintiffs’ amended note of issue, filed on June 1, 1992, unanimously affirmed, with costs.

Under the circumstances of this case, it was not an improvident exercise of discretion for the IAS Court to deny defendants’ motion to vacate the plaintiffs’ amended note of issue and certificate of readiness as allegedly barred by an "automatic” dismissal of the underlying action under CPLR 3404.

Despite the seemingly definitive language of CPLR 3404, dismissal for failure to restore an action within one year after it has been marked off the calendar is neither automatic nor self-executing, since the statute creates only a presumption of abandonment which may be negated by proof of litigation actually in progress (Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, 721, appeal dismissed 69 NY2d 874). Thus, the IAS Court did not abuse its discretion in denying vacatur, since it found that the plaintiffs had successfully rebutted the presumption of abandonment by establishing that extensive discovery in the underlying action was actually in progress (Rodriguez v Middle Atl. Auto Leasing, supra, at 721).

We have reviewed the defendants’ remaining claims and find them to be without merit. Concur—Sullivan, J. P., Ellerin, Wallach, Rubin and Nardelli, JJ.