Opinion
March 19, 1992
Appeal from the Supreme Court, New York County (Martin Evans, J.).
While plaintiff's showing of case activity arguably was sufficient to rebut the presumption of abandonment that arises when a case is dismissed pursuant to CPLR 3404 (see, Marco v Sachs, 10 N.Y.2d 542, 550; Rodriguez v Middle Atl. Auto Leasing, 122 A.D.2d 720, 721, appeal dismissed 69 N.Y.2d 874), plaintiff's attorneys fail to explain the delay of approximately four years in moving to restore the case to the trial calendar after they received notice of its having been struck from the calendar, and the delay of fifteen months in so moving after they received notice of the dismissal pursuant to CPLR 3404. Plaintiff's attorneys also fail to rebut defendants' showing that two out of three eyewitnesses can no longer be located, and the prejudice caused thereby.
Concur — Murphy, P.J., Carro, Rosenberger, Kupferman and Ross, JJ.