Opinion
May 16, 1988
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order is affirmed, with costs.
Restoration of a case to the Trial Calendar subsequent to an automatic dismissal pursuant to CPLR 3404 requires the movant to establish the merit of the action, an excuse for the delay, lack of intention to abandon the action and a lack of prejudice to the nonmoving parties (see, Marco v Sachs, 10 N.Y.2d 542, rearg denied 11 N.Y.2d 766, 798; Hammer v Hochberg, 128 A.D.2d 834; Ornstein v Kentucky Fried Chicken, 121 A.D.2d 610).
In the instant case, the plaintiff did not tender any excuse for counsel's failure to appear for trial on the date the action was marked off the Trial Calendar and the proffered excuse for the delay in moving to restore the action was inadequate. Here, the presumption that an action dismissed pursuant to CPLR 3404 has been abandoned was not rebutted by a disputed oral understanding between the parties, pursuant to which the defendants' attorneys purportedly agreed to execute a stipulation consenting to the restoration of the action to the Trial Calendar or, in the alternative, not to oppose restoration (see, Bergan v Home for Incurables, 124 A.D.2d 517; cf., Stiliho v Fine, 79 A.D.2d 913). Furthermore, the papers submitted by the plaintiff in support of the motion did not satisfactorily demonstrate the merit of the action. Weinstein, J.P., Spatt, Sullivan and Balletta, JJ., concur.