Uvick v. Sealand

—In a malpractice action, defendant appeals from an order of the Supreme Court, Queens County, dated September 8, 1966, which (1) granted plaintiffs’ motion to vacate the automatic dismissal of their action for failure to file a statement of readiness (CPLR 3404; Rules of App. Div., 2d Dept., part 7, rule VIII), (2) granted leave to file the statement of readiness annexed to the moving papers, and (3) restored the action to the foot of the calendar. Order reversed, without costs, and motion denied, with leave to renew upon papers making a factual showing of merit. In our opinion, there are not enough facts presented to show that the method used in the operation was improper or contrary to custom and usage, or to show that there was negligence in its performance, or to substantiate the other allegations of negligence (see Dembicer v. Rosenthal, 53 Misc 2d 777, affd. 20 A D 2d 758, lv. to app. den. 16 N Y 2d 483; [957] Mintzer v. Loeb, Rhoades & Co., 10 A D 2d 27). Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.