Christopher v. Horton

Order unanimously reversed, with costs, and motion denied. Memorandum: Defendants appeal from an order granting plaintiff’s motion to restore this negligence action to the Trial Calendar. We reverse. To vacate a CPLR 3404 order of dismissal, plaintiff must rebut the presumption of abandonment and demonstrate excusable neglect, a meritorious claim and lack of prejudice to defendants (see O’Dell v Stornelli, 98 AD2d 957). Generally; in order to rebut the presumption of abandonment, plaintiff must show some activity within the one-year period after the case is placed on the general docket (see…