Rifkin v. Herman

—In an action to recover damages for dental malpractice, the defendant appeals from an order of the Supreme Court, Queens County (Lisa, J.), dated June 30, 1998, which granted the plaintiffs motion to vacate the automatic dismissal of the complaint pursuant to CPLR 3404 and to restore the action to the trial calendar.

Ordered that the order is affirmed, with costs.

Under the circumstances, it was not an improvident exercise of discretion to vacate the automatic dismissal and to restore the action to the trial calendar. CPLR 3404 creates a rebuttable presumption that an action marked off the…