Michael I. Weintraub, P. C. v. Computer Rad, Inc.

—In an action to recover damages for, inter alia, breach of contract and fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Ingrassia, J.), dated January 4, 1993, which denied its motion to restore the action to the trial calendar and deemed the action abandoned and dismissed.

Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is granted.

Although the failure to timely restore an action to the trial calendar creates a presumption of abandonment (see, CPLR 3404), under the facts of this case, we find that the plaintiff made a sufficient showing to rebut the presumption (see, Fiorello v South Shore Dental Assocs., 203 AD2d 323; Roberson v City of New York, 195 AD2d 597, 598). Accordingly, and because the plaintiff provided a sufficient affidavit of merit, we exercise our discretion and grant the application to restore this action to the trial calendar. Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.