Mullen v. Flushing Hospital

161 A.D.2d 748

Opinion

In a wrongful death action, the defendant Ganesh P. Kumar appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Joy, J.), dated January 3, 1989, as denied his motion for dismissal of the complaint as asserted against him.

Ordered that the order is affirmed insofar as appealed from, with costs.

Upon a review of the record, we conclude that the Justice assigned to the action under the individual assignment system, Justice Joy, properly entertained the appellant’s motion to dismiss the complaint as asserted against him for the plaintiffs failure to comply with a conditional order issued by another Supreme Court Justice approximately one year earlier (see, Rodriguez v Aled Transp. Co., 147 AD2d 625; Ministry of Christ Church v Mallia, 129 AD2d 922; Dalrymple v King Community Health Center, 127 AD2d 69). Having presided over the matter during that year, Justice Joy was most familiar with the circumstances underlying the plaintiffs inability to comply with the order and in the best position to evaluate whether to impose sanctions therefor (see, Dalrymple v King Community Health Center, supra, at 73). He thus properly determined that in the "interests of justice” he would deny the appellant’s motion to dismiss the complaint as asserted against him. Bracken, J. P., Rubin, Rosenblatt and Miller, JJ., concur.