Opinion
November 5, 1962
In an action to recover damages for wrongful death and for the recovery of security money on a lease, defendants appeal from an order of the Supreme Court, Queens County, dated April 12, 1962, which granted plaintiff's motion to vacate a prior order of said court dated February 19, 1962, dismissing the complaint for lack of prosecution. Said prior order provided that the "dismissal is without prejudice to a prompt motion to vacate" the order. Order of April 12, 1962, affirmed, with $10 costs and disbursements. The failure to prosecute the action has been explained; and, on the motion to vacate, a showing of a meritorious cause of action was made. No particular prejudice is shown to have resulted to the defendants by reason of the delay in prosecution. It is also to be noted that their motion to dismiss was made after the Statute of Limitations had run on the plaintiff's cause of action, with the consequence that the plaintiff would be denied her day in court if the prior order dismissing the complaint were allowed to stand. Under the circumstances, the Special Term properly exercised its discretion in vacating such prior order of dismissal. Beldock, P.J., Ughetta, Kleinfeld, Hill and Rabin, JJ., concur.