Opinion
November 7, 1994
Appeal from the Supreme Court, Westchester County (Ingrassia, J.).
Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is granted.
Although the failure to timely restore an action to the trial calendar creates a presumption of abandonment (see, CPLR 3404), under the facts of this case, we find that the plaintiff made a sufficient showing to rebut the presumption (see, Fiorello v South Shore Dental Assocs., 203 A.D.2d 323; Roberson v. City of New York, 195 A.D.2d 597, 598). Accordingly, and because the plaintiff provided a sufficient affidavit of merit, we exercise our discretion and grant the application to restore this action to the trial calendar. Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.