KASSOVER v. DIAMONDS RUN LTD

Assuming, in defendant's favor, that CPLR 3404 applies to cases marked off the calendar on consent of the parties as well as to cases struck due to a party's default or neglect (see, Williams Corp. v Roma Fragrances Cosmetics, 166 A.D.2d 327; Escobar v Deepdale Gen. Hosp., 172 A.D.2d 486), it was not an abuse of discretion to restore the action to the calendar, in view of plaintiff's strong showing of merit on both liability and damages, defendant's failure to show prejudice, the extensive and ongoing medical treatment undertaken by plaintiff during the period of delay, and the parties' stipulation providing for restoration to be calendared.

Concur — Rosenberger, J.P., Kupferman, Asch and Rubin, JJ.