
    Marjorie Rosenkrantz, Respondent, v Michael F. Erdheim, Appellant.
    [707 NYS2d 831]
   —Order, Supreme Court, New York County (Emily Goodman, J.), entered June 21, 1999, which denied defendant’s motion to dismiss the complaint pursuant to CPLR 3404 for plaintiffs failure to prosecute her action during the four years the action was marked “off calendar,” and restored the action to the trial calendar, unanimously affirmed, without costs.

Since at the time this action was marked off the calendar, a stay of the action was in effect, and plaintiffs verified complaint and bill of particulars assert a meritorious claim for legal malpractice, the motion to dismiss for want of prosecution was properly denied (see, Ramputi v Timko Contr. Corp., 262 AD2d 26, 27, citing Sanchez v Javind Apt. Corp., 246 AD2d 353, 355). We find no demonstrable prejudice to defendant by reason of the period between the date the action was marked “off calendar” and defendant’s motion, since defendant’s defense will in all likelihood be based principally on his personal notes and the court files of plaintiffs matrimonial action. In light of the continuing viability of plaintiffs malpractice claim, the prior judgment in defendant’s favor stemming from defendant’s counterclaim for legal fees should remain stayed pending resolution of the main action. Concur — Williams, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.  