Briskman v. Kushner

¶1In a 'negligence action to recover damages for personal injuries, which action was dismissed as abandoned (CPLR 3404), plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County, dated August 20, 1969, as, after granting renewal of her prior motion for leave to file a statement of readiness nunc pro tunc, denied said prior motion and also her motion to vacate the dismissal of the action. Order reversed insofar as appealed from, on the law and the facts, with one bill of $10 costs jointly against respondents filing separate briefs, and motions for leave to file a statement of readiness and to vacate the dismissal of the action granted. In our opinion, the record sufficiently establishes that plaintiff never intended to abandon the action. Absent demonstrated prejudice to defendants, it was an improvident exercise of discretion to deny the motion (cf. Marco v. Sachs, 10 N Y 2d 542; Tactuk v. Freiberg, 24 A D 2d 503; Boyle v. Krebs & Schulz Motors, 18 A D 2d 1010; Blau v. Levine, 28 A D 2d 1137; Ackerman v. Perchikoff, 30 A D 2d 672; Sloan v. Glashow, 29 A D 2d 963). Christ, Acting P. J., Rabin, Munder, Martuscello and Benjamin, JJ., concur.