Opinion
April 22, 1974
In consolidated negligence actions to recover damages for personal injuries, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated May 11, 1973, as, upon reargument, adhered to the original decision denying his prior motion to restore the case to the Trial Calendar, the case having previously been dismissed pursuant to CPLR 3404. Order reversed insofar as appealed from, without costs, and prior motion granted, upon condition that, within 20 days after entry of the order to be made hereon, plaintiff's attorney personally pay $250 costs, half to each of the two sets of defendants who appeared separately and filed separate briefs on this appeal. In our opinion it was an improvident exercise of discretion to deny plaintiff's motion to vacate the dismissal of the action and restore the case to the Trial Calendar. The facts adduced warranted the granting of the motion upon the payment of costs as herein directed ( Moran v. Rynar, 39 A.D.2d 718; Barrada v. Target Constr. Corp., 31 A.D.2d 810). Martuscello, Acting P.J., Latham, Shapiro, Benjamin and Munder, JJ., concur.