Opinion
June 20, 1988
Appeal from the Supreme Court, Suffolk County (Orgera, J.).
Ordered that the order is affirmed, with costs.
Under the circumstances of this case, it was not an improvident exercise of discretion to deny the motion to vacate the plaintiffs' note of issue and certificate of readiness. While CPLR 3404 creates a rebuttable presumption that an action marked off the Trial Calendar and not restored for a period of one year has been abandoned, such presumption does not apply where litigation in the case is actually in progress (see, Chin v Ying Ping Fung, 126 A.D.2d 415, 416; Rutger Fabrics Corp. v United States Laminating Corp., 111 A.D.2d 40, 41). The subject rule "was adopted for the purpose of getting rid of cases that are actually dead by striking them from the calendars" (Marco v Sachs, 10 N.Y.2d 542, 550, rearg denied 11 N.Y.2d 766). In the instant case, the motion practice and further discovery conducted by the parties subsequent to the time the case was marked off the Trial Calendar on May 6, 1985, clearly evinces an intent to pursue rather than abandon the action. Moreover, the appellant should not be permitted to profit from delays which were caused, in large measure, by his own conduct (see, Gaffy v Buffalo Gen. Hosp., 55 A.D.2d 850, 851; accord, Morhaim v Morhaim, 81 A.D.2d 790, 791). Under the circumstances, his motion to vacate the plaintiffs' note of issue and certificate of readiness and to strike the action from the Trial Calendar was properly denied. Lawrence, J.P., Weinstein, Spatt and Balletta, JJ., concur.