
    Myron M. Sloan, as Administrator of the Estate of Howard Sloan, Deceased, Appellant, v. Jules Glashow, Respondent.
   Appeal by plaintiff from an order of the Supreme Court, Queens County, dated May 2, 1967, which denied his motion (1) to vacate his default and the dismissal of the action, (2) to restore the action to the Trial Calendar, (3) to direct defendant to appear for examination before trial and (4) for leave to file a statement of readiness after completion of the examination. Order reversed, on the law and the facts, without costs, and motion granted. Defendant is directed to appear for examination before trial at a time and place to be specified in a ten-day written notice, or at such other time and place mutually fixed by the attorneys for the respective parties. About 10:00 a.m. on April 18, 1963 defendant, a physician, removed the tonsils and adenoids from plaintiff’s 5%-year-old son. The son died about 12 hours later. This action to recover damages for wrongful death and for conscious pain and suffering was commenced on October 22, 1963. In November, 1964, plaintiff served a note of issue, without a statement of readiness. On November 30, 1965 the action was marked off the calendar for failure to file a statement of readiness. On November 30, 1966 the action was dismissed (CPLR 3404). In our opinion, the facts in this case refute the presumption of abandonment and show that plaintiff continuously evinced an intent to pursue this meritorious litigation. Christ, Acting P. J., Brennan, Hopkins, Benjamin and Munder, JJ., concur.  