Michael I. Weintraub, P. C. v. Computer Rad, Inc.

—In an action to recover damages for, inter alia, breach of contract and fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Ingrassia, J.), dated January 4, 1993, which denied its motion to restore the action to the trial calendar and deemed the action abandoned and dismissed.

Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is granted.

Although the failure to timely restore an action to the trial calendar creates a presumption of abandonment (see, CPLR 3404), under the facts of this case, we find that the plaintiff made…