Beaugene v. Duo-Fast Corp.

Order unanimously reversed on the law with costs, motion granted and complaint reinstated. Memorandum: Supreme Court improvidently exercised its discretion in denying plaintiffs motion to restore the action to the trial calendar (see, CPLR 3404) and in dismissing the complaint. ”[T]he failure to timely restore the case to the trial calendar creates only a presumption of abandonment, which may be rebutted by a conclusive showing that the party had no intention of abandoning the action (see, Marco v Sachs, 10 NY2d 542; McShan v Dilbert’s Quality Supermarkets, 33 AD2d 792)” (Fiorello v South…