Opinion
May 24, 1999
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order is affirmed, with one bill of costs.
On September 20, 1994, this case was marked off the trial calendar upon agreement by the parties. One year later, pursuant: to CPLR 3404, the action was deemed abandoned and automatically dismissed ( see, Rosser v. Scacalossi, 140 A.D.2d 318). By notice of motion dated January 27, 1998, the plaintiffs sought to restore the action to the calendar.
Actions which are deemed abandoned and which are automatically dismissed pursuant to CPLR 3404 may not be restored to the calendar unless the plaintiff produces evidence which (1) rebuts the presumption of abandonment, (2) demonstrates the merit of the underlying cause of action, and (3) shows that the defendants have not been prejudiced ( Escobar v. Deepdale Gen. Hosp., 172 A.D.2d 486; Hillegass v. Duffy, 148 A.D.2d 677).
During the three-year and four-month lapse between the automatic dismissal and the plaintiffs' motion to restore, there was activity in the form of motion practice and discovery, some of which was delayed by the death of one of the defendants. The circumstances indicate that the case was not abandoned ( see, Denver v. American Home Prods. Corp., 138 A.D.2d 670). Furthermore, the plaintiffs have shown that they have meritorious causes of action through an affidavit of an expert physician, and they have also demonstrated a lack of prejudice to the defendants ( cf., Friedberg v. Bay Ridge Orthopedic Assocs., 122 A.D.2d 194; Monahan v. Fiore, 71 A.D.2d 914).
O'Brien, J. P., Ritter, Joy, Altman and Smith, JJ., concur.