Opinion
July 26, 1993
Appeal from the Supreme Court, Kings County (Hurwitz, J.).
Ordered that the order is affirmed, with costs.
The instant action was "marked off" the trial calendar when the parties failed to appear for a "status conference". The plaintiff successfully moved to restore this action to the trial calendar on the ground that she had not received notice of the status conference.
The appellant contends that because the motion to restore the action was made more than one year after it had been struck, it should be deemed abandoned pursuant to CPLR 3404. The plaintiff maintains that her motion was made within a year after the case was struck.
Although the record is not clear, even assuming that the motion was not made within one year, the presumption of abandonment under CPLR 3404 was rebutted since litigation continued to be actually in progress. The appellant moved to inspect the Grand Jury minutes in a related criminal action and appealed from the order denying that motion. There was also further discovery in relation to this action. Clearly, there was no intent to abandon the action (see, Marco v. Sachs, 10 N.Y.2d 542; Drucker v Progressive Enters., 172 A.D.2d 481; Beltrani v. Mirabile, 141 A.D.2d 688). Bracken, J.P., Balletta, Lawrence and Copertino, JJ., concur.