Dousmanis v. Joe Hornstein, Inc.

218 A.D.2d 627, 631 N.Y.S.2d 28, 1995 N.Y. App. Div. LEXIS 8931

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 31, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Beverly Cohen, J.), entered on or about March 22,1994, which denied plaintiffs motion, pursuant to CPLR 3404, to restore the case to the trial calendar, unanimously reversed, on the law, the motion granted and the case restored to the trial calendar, without costs.

Given the fact that plaintiff’s action was initially stricken from the trial calendar when counsel appeared less than an hour late for a pretrial conference scheduled for the purpose of extending defendants’ time to conduct discovery of plaintiff’s extensive medical file, it was improvident to deny plaintiff’s promptly made motion to restore even though counsel failed to appear on the initial date set for argument of such motion, his claim being lack of notice. Counsel should have been given the benefit of the stipulation originally agreed to by two of his adversaries, and plaintiff should not be precluded from pursuing the merits of his action because of the possible shortcomings of counsel. Concur—Rosenberger, J. P., Ellerin, Kupferman, Tom and Mazzarelli, JJ.