Opinion
November 17, 1986
Appeal from the Supreme Court, Queens County (Lerner, J.).
Ordered that the order is reversed, in the exercise of discretion, without costs or disbursements, the plaintiff's motion to vacate the dismissal of the action is denied, the action is stricken from the calendar, and the order dismissing the action is reinstated.
This action was commenced by the plaintiff Maria Resto, also known as Maria Munoz, to recover damages on behalf of her then-infant son, Manuel Resto, and herself, individually, as a result of personal injuries sustained by Manuel on November 8, 1976, when he allegedly fell down a flight of stairs in a two-family residence and store premises owned by the defendants.
In October 1980 the action was marked off the Trial Calendar because the counsel for the plaintiff and her son had lost contact with them after they had moved to Puerto Rico. Thus, the plaintiff and her son were unavailable to submit to depositions, which were to be held 10 days before the trial. In October 1981 t he action was automatically dismissed pursuant to CPLR 3404 for neglect to prosecute. Thereafter, in October 1985, five years after the case was marked off the calendar, the plaintiff and her son sought to vacate the dismissal and restore the matter to the Trial Calendar.
We find that neither the plaintiff nor her son, who was over 21 years of age at the time of the motion, has adequately rebutted the presumption of abandonment created by the dismissal of the action pursuant to CPLR 3404. Moreover, no reasonable excuse was offered for the five-year delay nor was it shown that the defendants would not be prejudiced by the delay (cf. Sheehan v Hollywood, 112 A.D.2d 211, 212).
Accordingly, the order appealed from should be reversed, and the plaintiff's motion denied. Brown, J.P., Rubin, Lawrence and Kooper, JJ., concur.