Bailey v. Schaeffner

In an action to recover damages for personal injury, the plaintiff appeals: (1) from an order of the Supreme Court, Nassau County, dated January 16, 1964, which granted defendant’s motion to dismiss the complaint for lack of prosecution pursuant to statute (CPLR 3216); and (2) from an order of said court, made February 18, 1964 upon renewal and reconsideration, which adhered to the original determination. Appeal from original order of January 16, 1964 dismissed, without costs, as academic; that order was superseded by the later order, granting reconsideration. Order of February 18, 1964, insofar as it adheres to the original determination and grants defendant’s motion to dismiss the complaint, reversed, with $10 costs and disbursements; and defendant’s motion denied. Under the circumstances disclosed by this record, we believe that it was an improvident exercise of discretion to dismiss the complaint for lack of prosecution. Beldock, P. J., Kleinfeld, Brennan, Hill and Rabin, JJ., concur.