Mahon v. Rothschild

Order, Supreme Court, New York County (Harold Tompkins, J.), entered March 9, 1999, which denied plaintiffs motion to restore this action to the trial calendar, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the motion granted. Although plaintiff failed to move to restore this action within one year after it was marked off the court’s calendar (see, CPLR 3404), she demonstrated that she had a meritorious cause of action, a reasonable excuse for the delay in seeking to restore the action to the calendar, a lack of prejudice to defendant, and a lack of intent to abandon the action (see, Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, appeal dismissed 69 NY2d 874). We note in this regard that plaintiffs allegations were uncontroverted as defendant did not oppose the motion. Accordingly, Supreme Court abused its discretion in refusing to grant the requested relief. Concur — Rosenberger, J. P., Mazzarelli, Ellerin, Rubin and Friedman, JJ.