Weintraub v. Half Hollow Central School District

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal (1) from an order of the Supreme Court, Suffolk County (Jaspan, J.), dated January 31, 1980, which granted the defendant school district’s motion to dismiss the action as to it for failure to prosecute, and (2) as limited by their brief, from so much of an order of the same court, dated March 24,1980, as, upon reargument, adhered to the prior determination. Appeal from order dated January 31, 1980 dismissed. Said order was superseded by the order made upon reargument. Order dated March 24, 1980 reversed insofar as appealed from; order dated January 31, 1980 vacated, and the school district’s motion denied. Plaintiffs are awarded one bill of $50 costs and disbursements. Due to the serious nature of the infant plaintiff’s injury and since a substantial portion of the delay in prosecution appears to have been caused-by the defendants, this action should not be dismissed (Carron v De Granpre, 55 AD2d 712; Batista v St. Luke’s Hosp., 46 AD2d 806). Damiani, J.P., Gibbons, Cohalan and O’Connor, JJ., concur.