Dougherty v. Conti 4 A.D.2d 682

In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from an order which (1) granted respondents’ motion to vacate a prior order which on reargument adhered to the original decision dismissing the complaint for unreasonable neglect to proceed in the action, and (2) restored the action to the trial calendar. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. The original motion to dismiss was granted and upon reargument that decision was adhered to. Thereafter, a motion was made to vacate the order entered on the motion for reargument, in which the excuse for the delay was for the first time presented that the file had been misplaced in another file, apparently bearing a similar name, although that fact had become known to respondents’ attorneys prior to the return date of the original motion. It is our view that under all the circumstances, the granting of the motion to vacate the prior order was an improvident exercise of discretion. Wenzel, Acting P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.