Rafkin v. Perma Realty Corp.

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated April 7, 1970, which, inter alia, granted plaintiff’s motion to vacate the dismissal of the action and to restore the action -to the Trial Calendar. Order reversed, without costs, and motion denied. The case was dismissed on May 25, 1963, after a year had passed without plaintiff's filing a new note of issue. Admittedly, plaintiff’s former attorney became aware of the dismissal in 1965 and plaintiff became aware of it in 1968. The present motion was not made until February, 1970. In our opinion, the granting of the motion was an improvident exercise of discretion. Hopkins, Acting P. J., Martuscello, Shapiro, Gulotta and Benjamin, JJ., concur.