SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
January 20, 1969
RICHARD CORDES, RESPONDENT,
JAMES STEWART, APPELLANT
Brennan, Acting P. J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.
In a negligence action to recover damages for personal injuries, which action was automatically dismissed pursuant to statute and the rules of this court (CPLR 3404; Rules, App. Div., 2nd Dept., part 8 [formerly part 7], rule VIII; 22 NYCRR 675.8) for neglect to prosecute, defendant appeals from an order of the Supreme Court, Queens County, dated May 27, 1968, which granted plaintiff's motion to vacate the dismissal and for other relief. Order reversed, on the law and the facts, without costs, and motion denied. In its essential facts this case does not differ from Renne v. Roven (29 A.D.2d 866) and accordingly we believe the Trial Term improvidently exercised its discretion in granting the motion.
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