Opinion
October 22, 1964
Order, entered on February 14, 1964, granting motion to dismiss for lack of prosecution, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $30 costs and disbursements to the appellant, and the motion denied. In this action plaintiff claims that he fell in the street because of the negligent manner in which a defective condition was left guarded. Plaintiff received no co-operation and was actually hindered by the city in his efforts to discover the parties responsible for creating the condition. Since service of the city's answer plaintiff has been almost continuously occupied by his pretrial activities and those of the various defendants who have been brought into the action by the plaintiff and the city. Those activities rebut any inference arising merely from the time elapsed that plaintiff intended to or did abandon the action.
Concur — Breitel, J.P., Valente, McNally, Eager and Steuer, JJ.