Opinion
January 23, 1996
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
Although failure to restore a matter to the calendar after it is automatically marked off pursuant to CPLR 3404 ordinarily leads to an automatic and self-executing dismissal ( see, 3 Park Ave. Co. v New York City Educ. Constr. Fund, 109 A.D.2d 656, appeal dismissed 65 N.Y.2d 785), the presumption of abandonment ( see, Condro v Jhaveri, 154 A.D.2d 646, 647, lv dismissed 75 N.Y.2d 896) is rebuttable ( see, CCS Communication Control v Patent, 193 A.D.2d 435) and plaintiff made a sufficient showing here based upon the parties' stipulation ( see, Sannella v Plainview Fire Dept., 136 A.D.2d 617). Moreover, the record demonstrates the action is meritorious, that the excuse for delay is reasonable, that there is no undue prejudice to defendant, and that there was no abandonment by plaintiff ( see, Krantz v Scholtz, 201 A.D.2d 784, 785, lv dismissed 83 N.Y.2d 902). Defendant does not challenge the substantive merits of the grant of partial summary judgment.
Concur — Sullivan, J.P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.