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Supreme Court, Appellate Division, First Department, New York.

GOLDBERG, WEPRIN & USTIN, Plaintiff-Respondent, v. Solomon J. BORG, et al., Defendants-Appellants.

Decided: April 11, 2000

ROSENBERGER, J.P., WILLIAMS, TOM and MAZZARELLI, JJ. Douglas Taus, for Plaintiff-Respondent. Defendants-Appellants, Pro Se. Solomon J. Borg, for Defendants-Appellants.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about May 10, 1999, which granted plaintiff's motion to restore the matter to the calendar, unanimously affirmed, with costs.

It is undisputed that this case was marked off the calendar due to the failure of both parties to appear at a pre-trial conference in June 1997 and the erroneous belief of both parties that the case was to be placed by the court on the referee's calendar for determination of the issue of damages.   Plaintiff, a law firm, did not become aware that the case had been marked off the calendar until August 1999, after reviewing the files of one of its former attorneys, who left the firm under strained conditions and without informing plaintiff that the case had been marked off the calendar.   Plaintiff's delay in restoring the case was properly excused in view of the clear merits of the case, i.e., plaintiff having obtained summary judgment on the issue of liability, the absence of an intent to abandon on plaintiff's part, and the lack of prejudice to defendants (see, CPLR 2005;  Sanchez v. Javind Apt. Corp., 246 A.D.2d 353, 667 N.Y.S.2d 708).