Opinion
November 13, 1961
In an action to recover damages for injuries to person and property sustained as the result of the negligent operation of a motor vehicle, defendant Webber appeals from an order of the Supreme Court, Kings County, dated June 28, 1961, which denied his motion to dismiss the complaint for lack of prosecution on condition that plaintiffs shall place the action on the Trial Calendar by serving and filing a note of issue for the October 1961 Term. Order affirmed, without costs. No opinion. Beldock, Acting P.J., Christ and Pette, JJ., concur; Ughetta and Brennan, JJ., dissent and vote to reverse the order and to grant the motion on the ground that under the circumstances here, the Special Term, in denying the motion conditionally, improvidently exercised its discretion.