Opinion
March 26, 1962
In an action to recover damages for personal injuries, two of the defendants, Skyway Construction Co., and 148 West 48th Corp., appeal from so much of an order of the Supreme Court, Kings County, dated October 27, 1961, as: (1) conditionally grants their motion to dismiss the complaint for lack of prosecution, the condition being that plaintiff shall immediately serve a note of issue and place the action on the calendar for the December 1961 Term; and (2) as reserves the rights of all parties to conduct examinations before trial. Order modified by adding as a further condition to the granting of the motion, that plaintiff's attorneys shall pay the sum of $100 to the attorneys for defendants, Skyway Construction Co. Inc., and 148 West 48th Corp. As so modified, order, insofar as appealed from, affirmed, without costs. Said sum of $100 is directed to be paid within 20 days after entry of the order hereon. Under all the circumstances, while plaintiff is entitled to a further opportunity to proceed with the prosecution of the action, plaintiff's attorneys should compensate the attorneys for the moving defendants for the additional expense and work entailed in consequence of their (plaintiff's attorneys') delay. Beldock, P.J., Kleinfeld, Brennan, Hill and Rabin, JJ., concur.