Opinion
July 15, 1994
Appeal from the Supreme Court, Kings County, Dowd, J.
Present — Green, J.P., Balio, Fallon, Callahan and Davis, JJ.
Order unanimously reversed on the law with costs, motion granted and complaint reinstated. Memorandum: Supreme Court improvidently exercised its discretion in denying plaintiff's 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 N.Y.2d 542; McShan v. Dilbert's Quality Supermarkets, 33 A.D.2d 792)" (Fiorello v. South Shore Dental Assocs., 203 A.D.2d 323, 324). The record establishes that plaintiff never intended to abandon the action.