Banfield v. Kelly , 251 N.Y.S.2d 929 ( 1964 )

In a negligence action, the plaintiff appeals from two orders of the Supreme Court, Queens County: (1) an order dated April 26, 1963, which granted the defendant’s motion to dismiss the complaint for failure to diligently prosecute the action; and (2) an order, dated September 23, 1963, which, on reargument, adhered to the original decision and again granted the defendant’s motion to dismiss. Appeal from order dated April 26, 1963, dismissed, without costs; that order was superseded by the later order. Order, dated September 23, 1963, insofar as it adheres to the prior decision and grants the motion to dismiss, reversed, with $10 costs and disbursements to plaintiff, and motion to dismiss denied, without prejudice to an application by plaintiff to transfer the action to the Civil Court of the City of New York, if the plaintiff be so advised. Under all the circumstances here, we believe it was an improvident exercise of discretion to dismiss the action. Beldock, P. J., Christ, Brennan, Rabin and Hopkins, J J., concur.