While we concur fully in the Motion Court's condemnation of plaintiffs' counsel's derelictions, on balance, the plaintiffs should be afforded their day in court despite the egregious law office failure of their attorneys. On this record, the presumption of abandonment is rebutted. On the reargument/renewal motion, counsel did submit additional evidence on the merits of the case and the etiology of the law office failure. Thus, the motion can be viewed as a motion to renew and not merely reargue (compare, Foley v. Roche, 68 A.D.2d 558, 567-568; Oppenheimer Co. v. Oppenheim, Appel, Dixon Co., 173 A.D.2d 203). The record establishes that the law office failure was not willful (see, Massachusetts Bay Ins. Co. v. Guardian Escrow Corp., 171 A.D.2d 615), that the action is prima facie meritorious, and that defendant was not prejudiced by the delay (see, Pirnak v Savino, 96 A.D.2d 857).
Concur — Murphy, P.J., Sullivan, Rosenberger and Kassal, JJ.