Cardinales v. Jamaica Hospital

647 Under the circumstances of this case, it was not an improvident exercise of the court’s discretion to deny the motion and cross motion to dismiss the action pursuant to CPLR 3404. While CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored for a period of one year has been abandoned, the presumption is rebutted where the parties continue to actively litigate the matter during this one year period (see, Drucker v Progressive Enters., 172 AD2d 481; Beltrani v Mirabile, 141 AD2d 688; Chin v Ying Ping Fung, 126 AD2d 415, 416). In this case, in the one year after the case was marked off the calendar, the parties’ attorneys engaged in discovery proceedings, scheduled a court conference, and otherwise proceeded with a course of conduct evincing a lack of intent to abandon the action. Additionally, the plaintiff submitted an affidavit of merit and a reasonable excuse for the delay, and there is no indication in the record of prejudice to the appellants. Balletta, J. P., O’Brien, Ritter, Pizzuto and Altman, JJ., concur.