Gardner v. Kenneth D. Laub & Co.

72 A.D.2d 727, 443 N.Y.S.2d 1, 1979 N.Y. App. Div. LEXIS 13927

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1979
• Status: Published

Opinion

Order, Supreme Court, New York County, entered April 3, 1979, denying plaintiff’s motion to vacate the dismissal of the action because of his default in appearing for trial, unanimously reversed, on the facts and in the exercise of discretion, without costs, and motion granted on condition that the attorney for plaintiff pay costs of $250 to defendant within 20 days after service of a copy of this court’s order with notice of entry thereof, and upon failure to so comply, the order is unanimously affirmed, without costs and without disbursements. It appears that plaintiff’s default occurred because of his lawyer’s erroneous belief that a date fixed for trial was really intended for the continuation of settlement negotiations and his corresponding failure, as a result of that misunderstanding, to be ready for trial or to inform his adversary of his lack of readiness. Considering that the matter had reached the point of trial without any apparent prior default by plaintiff and that the default which then occurred was due solely to the fault of plaintiff’s attorney, we believe it appropriate to grant the motion to vacate the default on the condition above indicated. Concur— Murphy, P. J., Birns, Sandler, Bloom and Lane, JJ.