Opinion
June 8, 1959
In an action to recover damages for personal injuries, the appeal is from an order granting respondent's motion, made pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice, to dismiss the complaint for failure diligently to prosecute the action. Order reversed, without costs, and motion denied upon condition that within 30 days after the entry of the order hereon the appellant pay $50 to the respondent and file a note of issue for the next available term; otherwise, order affirmed, without costs. While ordinarily the determination of the learned Justice at Special Term on a motion of this character would not be disturbed, nevertheless, in view of the extraordinary combination of the several serious misfortunes which affected appellant's attorney and disabled him from prosecuting this action diligently, and in view of the absence of any substantial prejudice to respondent, we are constrained in the interests of justice to deny the motion to dismiss for lack of prosecution, provided that appellant comply with the conditions stated. Nolan, P.J., Wenzel, Beldock and Hallinan, JJ., concur; Ughetta, J., not voting.