Levine v. City of New York

In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from an order denying a motion to dismiss the complaint, pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice, for failure to prosecute. Order affirmed, with $10 costs and disbursements. We do not agree with the learned Special Term that the failure to file a note of issue in this ease was occasioned by the *683engagement of respondents’ attorney in attendance at the pretrial sessions of the court. In our opinion, however, such omission was not the result of any willful or deliberate act. Under the circumstances of this case, where appellant has concededly suffered no prejudice and respondents have made a showing of meritorious causes of action, Special Term properly exercised its discretion {Brown v. Gity of New York, 1 A D 2d 905). Nolan, P. J., Beldoek, Murphy, Ughetta and Hallinan, JJ., concur.