SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 10, 1968
BESSIE ACKERMAN, AS EXECUTRIX OF ISAAC J. ACKERMAN, DECEASED, APPELLANT,
DAVID PERCHIKOFF, RESPONDENT
Appeal by plaintiff (1) from an order of the Supreme Court, Queens County, dated October 20, 1966, which denied her motion (a) to vacate the automatic dismissal of the action (CPLR 3404) and (b) to restore the action to the Trial Calendar and (2) from so much of an order of said court dated February 3, 1967 and made on reargument, as adhered to the original decision. Appeal from the order dated October 20, 1966 dismissed, without costs. That order was superseded by the order on reargument.
Beldock, P. J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.
In our opinion, the record indicates a meritorious cause of action, no intention to abandon the action on the part of plaintiff and no merit to defendant's claim of prejudice (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).
Order dated February 3, 1967 reversed insofar as appealed from, with $10 costs and disbursements, and original motion granted.
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