Opinion
April 29, 1963
In an action to recover damages for personal injury and for the wrongful death of the two decedents named above, the plaintiff individually and as administratrix appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County, dated November 16, 1962, made upon reargument, as adhered to the court's original decision and as dismissed the complaint for lack of prosecution (Civ. Prac. Act, § 181; Rules Civ. Prac., rule 156). Order, insofar as appealed from, reversed, with $10 costs and disbursements; judgment entered thereon vacated; and motion to dismiss the action for lack of prosecution denied, with $10 costs. In our opinion, in view of the deaths of the two aged original plaintiffs, the alleged nature of their injuries, defendant's agreement to the further prosecution of the decedents' claims by the plaintiff administratrix, defendant's service of his cross notice for the pretrial examination of said plaintiff and defendant's participation thereafter in adjournments of the proposed pretrial examinations, it was an improvident exercise of discretion to grant the defendant's motion to dismiss the action for lack of prosecution. Ughetta, Acting P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.