Opinion
March 21, 1985
Appeal from the Supreme Court, New York County (Gammerman, J.).
Plaintiffs commenced this medical malpractice action in August 1977. Defendant failed to appear or answer. On October 15, 1979, a stipulation was entered into granting defendant until October 31, 1979 to answer. Defendant interposed his answer. Included was an affirmative defense that personal jurisdiction over him had never been obtained. Thereafter, the matter proceeded, with no undue haste on either side. Twice, once in 1980 and again in 1981, the case was placed on the Trial Calendar. On both occasions, it was stricken upon motion of defendant on the ground that discovery had not yet been completed. Plaintiff Aglaea Stavrou was thereafter deposed. Plaintiff Nick Stavrou is still to be examined before trial.
A conference was had on January 27, 1982 between counsel and the court preparatory to the convocation of a medical malpractice panel. After consultation with the attorneys, the court adjourned the conference until March 1, 1982. For a year the case lay fallow. On March 24, 1983, the court notified counsel of a malpractice panel hearing to be held on April 12, 1983. This was adjourned in order to permit the completion of discovery.
Discovery was never completed. This may have been due to the fact that plaintiffs effected a substitution of counsel which never took hold and the matter was thereafter returned to the original attorneys. Be that as it may, in March 1984, defendant moved to dismiss upon the ground that the case had been marked off calendar and had not been restored within one year thereafter and, therefore, was deemed abandoned. Plaintiffs cross-moved to dismiss the affirmative defense of lack of jurisdiction. Special Term granted defendant's motion. In light of the granting of the motion, it denied plaintiffs' cross motion as moot.
CPLR 3404 merely creates a presumption that an action marked off calendar and not restored for a period of one year has been abandoned ( Kelly-Masp Piledriving Corp. v. Vita Food Prods., 52 A.D.2d 559). That presumption may be rebutted by affidavit or by facts showing continued pursuit of the litigation. While here neither party has been zealous in pursuing available procedural remedies, the course of the litigation demonstrates that they were still invoking the appropriate procedural remedies long after the case had been stricken from the calendar. In such circumstances, it cannot be said that plaintiffs intended to forfeit their rights. Since plaintiff Nick Stavrou has still not been deposed, we order that his examination before trial commence within 30 days after the entry of the order herein. Although there has been no disposition of plaintiffs' cross motion, we deny it. In light of the stipulation "waiving" the default of the defendant, no real issue is raised thereby.
Concur — Sullivan, J.P., Ross, Bloom and Fein, JJ.