May 9, 1985
Appeal from the Supreme Court, New York County (David Edwards, J.).
Special Term, denying the motion to excuse the default, cited the long period of delay on the part of plaintiffs' attorneys in preparing the case for trial. While some period of time could be excused as a result of counsel's illness and the breakup of a partnership, it is clear that, in terms of trial preparation, there was a great deal of inaction on the part of the attorneys. As held at Special Term, the pendency of a motion to serve an amended pleading did not relieve counsel of the obligation to restore the action to the calendar within the required one-year period, since the dismissal under CPLR 3404 is self-executing.
Nevertheless, pursuant to CPLR 2005, we may, in our discretion, excuse the delay and vacate the default which resulted from law office failure. On such a motion, it must be demonstrated that there was a sufficient excuse for the default, that the defaulting party has a meritorious cause of action or defense and that no prejudice will result to the adverse party ( Palmieri v. Romat Realty Corp., 45 A.D.2d 948). This standard applies to motions to excuse a default where an action has been automatically dismissed upon the failure of a party to restore the case to the calendar under CPLR 3404 ( see, Pirnak v. Savino, 96 A.D.2d 857).
CPLR 3404 creates a presumption that the action has been abandoned where it has not been restored to the calendar within the one-year period but the presumption is rebuttable and does not apply where litigation in the case is actually in progress ( see, Marco v. Sachs, 10 N.Y.2d 542, 550; Sygman v. Pep Fashions, 87 A.D.2d 787). As applied here, while there was less than due diligence exercised by plaintiffs' attorneys in moving the case to trial, it does appear that plaintiffs do have a meritorious claim and no real prejudice would result were the action to be restored to the calendar. Moreover, there were proceedings in preparation for trial during the period and, under the circumstances, dismissal of the action because of counsel's inaction would be unjustifiably harsh. In our view, a monetary sanction is appropriate with the case to proceed to a disposition on the merits.
Concur — Kupferman, J.P., Ross, Lynch, Kassal and Rosenberger, JJ.