Opinion
November 20, 1967
Order of the Supreme Court, Kings County, dated April 11, 1967, reversed, without costs, as to the decretal provision therein that the original decision denying plaintiff's motion to restore the action is adhered to; said motion is granted; the dismissal of the action is vacated; and the action is restored to the Trial Calendar in the position of its numerical order prior to the dismissal. Appeal dismissed insofar as it is from the order of said court dated January 18, 1967, without costs. That order was superseded by the order dated April 11, 1967, which granted plaintiff's motion for reconsideration. It is apparent from this record that plaintiff never intended to abandon the action. In our opinion, absent demonstrated prejudice to defendant, it was an improvident exercise of discretion to deny the motion to vacate the dismissal of the action and to restore the action to the Trial Calendar. Christ, Acting P.J., Brennan, Rabin, Hopkins and Munder, JJ., concur.