Fiorello v. South Shore Dental Associates, P. C.

203 A.D.2d 323, 612 N.Y.S.2d 923, 1994 N.Y. App. Div. LEXIS 3706

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1994
• Status: Published

Opinion

—In an action to recover damages for dental malpractice, the plaintiff appeals from an order of the Supreme County, Suffolk County (Gerard, J.), dated March 20, 1992, which granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3404 and denied her cross motion to restore the case to the trial calendar.

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

Under CPLR 3404, a case stricken from the trial calendar and not restored within one year thereafter is deemed abandoned and is dismissed for neglect to prosecute. However, the 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).

Under the facts of this case, we find that the plaintiff never intended to abandon her cause of action. Accordingly, we conclude that the Supreme Court improvidently exercised its discretion in granting the defendants’ motion to dismiss the complaint. Sullivan, J. P., Lawrence, Pizzuto, Joy and Gold-stein, JJ., concur.