Majority
p. 903Charles Lobosco, Appellant, v Albert L. Katzer et al., Respondents.
In a negligence action to recover damages for personal injuries, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated October 22, 1974, as, after denying his motion for reargument as to pretrial proceedings, sua sponte struck out plaintiff’s pleadings and dismissed the action. Order reversed insofar as appealed from, with $20 costs and disbursements, and plaintiff’s pleadings and action reinstated. The pretrial examination shall proceed at the place designated in the order dated July 29, 1974, at a time to be fixed in a written notice of not less than 10 days. In our view, plaintiff’s default, if
p. 904
any, in appearing for examination before trial while his motion for reargument was pending, was not so deliberate or contumacious as to justify the drastic action of dismissal of the action. Rabin, Acting P. J., Latham, Cohalan, Brennan and Shapiro, JJ., concur.