Solow v. Stuart

Order, Supreme Court, New York County (Beverly Cohen, J.), entered on of about June 9, 1994, which granted plaintiffs motion for summary judgment on his first and third causes of action, dismissed defendant’s second and third counterclaims and directed entry of judgment on the first cause of action in the amount of $24,753.25 and an inquest on the remaining causes of action, unanimously. affirmed, with costs. 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 AD2d 656, appeal dismissed 65 NY2d 785), the presumption of abandonment (see, Condro v Jhaveri, 154 AD2d 646, 647, lv dismissed 75 NY2d 896) is rebuttable (see, CCS Communication Control v Patent, 193 AD2d 435) and plaintiff made a sufficient showing here based upon the parties’ stipulation (see, Sannella v Plain-view Fire Dept., 136 AD2d 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 AD2d 784, 785, lv dismissed 83 NY2d 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.