Cotter v. City of New York

48 A.D.2d 814, 370 N.Y.S.2d 73, 1975 N.Y. App. Div. LEXIS 10016

Opinion

Order, Supreme Court, New York County, entered November 25, 1974, denying plaintiff’s motion to restore the case to the calendar, unanimously reversed, on the law and in the exercise of discretion, and said motion granted, without costs or disbursements. Though the instant action is of ancient vintage and had been on the calendar numerous times, counsel’s failure to appear on the date fixed for trial was due to his actual engagement in trial of another case in Supreme Court, Suffolk County. Under such circumstance, the cause should have been "held subject” (22 NYCCR 660.5[e]) and its dismissal for nonappearance was an improvident exercise of discretion. Concur—Markewich, J. P., Kupferman, Murphy, Capozzoli and Lynch, JJ.