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

Michael Thomas ETTER, et al., respondents, v. COUNTY OF NASSAU, et al., appellants.

Decided: May 24, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, DANIEL W. JOY, MYRIAM J. ALTMAN, NANCY E. SMITH, JJ. Hopkins, Kopilow & Weil, Garden City, N.Y. (Michael T. Hopkins of counsel), for appellants County of Nassau and Nassau County Medical Center. Wortman, Fumuso, Kelly, DeVerna & Snyder, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for appellants Milton Gardner, Carol Meltzer as Executrix of the Estate of Steven Meltzer, Howard Nathanson, and Douglas R. Phillips. DiJoseph, Portegello & Schuster, P.C., New York, N.Y. (Arnold E. DiJoseph III of counsel), for respondents.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Nassau County (DiNoto, J.), dated April 2, 1998, which granted the plaintiffs' motion to restore the action to the trial calendar and denied their cross motions to dismiss the action as abandoned.

ORDERED that the order is affirmed, with one bill of costs.

On September 20, 1994, this case was marked off the trial calendar upon agreement by the parties.   One year later, pursuant to CPLR 3404, the action was deemed abandoned and automatically dismissed (see, Rosser v. Scacalossi, 140 A.D.2d 318, 527 N.Y.S.2d 552).   By notice of motion dated January 27, 1998, the plaintiffs sought to restore the action to the calendar.

 Actions which are deemed abandoned and which are automatically dismissed pursuant to CPLR 3404 may not be restored to the calendar unless the plaintiff produces evidence which (1) rebuts the presumption of abandonment, (2) demonstrates the merit of the underlying cause of action, and (3) shows that the defendants have not been prejudiced (Escobar v. Deepdale Gen. Hosp., 172 A.D.2d 486, 567 N.Y.S.2d 842;  Hillegass v. Duffy, 148 A.D.2d 677, 539 N.Y.S.2d 426).

 During the three-year-and-four-month lapse between the automatic dismissal and the plaintiffs' motion to restore, there was activity in the form of motion practice and discovery, some of which was delayed by the death of one of the defendants.   The circumstances indicate that the case was not abandoned (see, Denver v. American Home Prods. Corp., 138 A.D.2d 670, 526 N.Y.S.2d 485).   Furthermore, the plaintiffs have shown that they have meritorious causes of action through an affidavit of an expert physician, and they have also demonstrated a lack of prejudice to the defendants (cf., Friedberg v. Bay Ridge Orthopedic Assoc., 122 A.D.2d 194, 504 N.Y.S.2d 731;  Monahan v. Fiore, 71 A.D.2d 914, 419 N.Y.S.2d 745).


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