Opinion
November 7, 1984
Appeal from the Supreme Court, Chautauqua County, Ricotta, J.
Present — Dillon, P.J., Boomer, Green, O'Donnell and Schnepp, JJ.
Order unanimously reversed, with costs, and motion denied. Memorandum: Defendants appeal from an order granting plaintiff's motion to restore this negligence action to the Trial Calendar. We reverse. To vacate a CPLR 3404 order of dismissal, plaintiff must rebut the presumption of abandonment and demonstrate excusable neglect, a meritorious claim and lack of prejudice to defendants (see O'Dell v Stornelli, 98 A.D.2d 957). Generally, in order to rebut the presumption of abandonment, plaintiff must show some activity within the one-year period after the case is placed on the general docket (see Marco v Sachs, 10 N.Y.2d 542). Here, there was no activity in this or the companion action during this period. Moreover, plaintiff has shown no excuse for his inordinate delay in prosecuting the action. Additionally, the affidavit of plaintiff's attorney, who lacked personal knowledge of the facts, is insufficient to establish a meritorious cause of action (see Lifset v Ehrlich, 61 A.D.2d 1063).