Beaugene v. Duo-Fast Corp.

Order unanimously reversed on the law with costs, motion granted and complaint reinstated. Memorandum: Supreme Court improvidently exercised its discretion in denying plaintiffs motion to restore the action to the trial calendar (see, CPLR 3404) and in dismissing the complaint. ”[T]he failure to timely restore the case to the trial calendar creates only a presumption of abandonment, which may be rebutted by a conclusive showing that the party had no intention of abandoning the action (see, Marco v Sachs, 10 NY2d 542; McShan v Dilbert’s Quality Supermarkets, 33 AD2d 792)” (Fiorello v South Shore Dental Assocs., 203 AD2d 323, 324). The record establishes that plaintiff never intended to abandon the action. (Appeal from Order of Supreme Court, Kings County, Dowd, J.—Restore to Calendar.) Present— Green, J. P., Balio, Fallon, Callahan and Davis, JJ.