Opinion
November 24, 1970
Order, Supreme Court, New York County, entered February 13, 1970, denying plaintiff's motion for an order vacating the dismissal of plaintiff's action and restoring same to Trial Calendar, unanimously reversed, on the law, on the facts and in the exercise of discretion, plaintiff's motion granted on payment of $100 costs, and the action restored to the Trial Calendar. Appellant shall recover of respondent $30 costs and disbursements of this appeal. Although the Trial Justice acted herein with most commendable zeal in the disposition of the cases on his calendar, and our action in no way derogates from his meritorious performance in this respect, nevertheless, we feel the infliction of the supreme penalty of dismissal was not completely warranted in this case. Actually, the attorney for the plaintiff was ready for trial, his witnesses from out of town had been subpoenaed and were to be in court on the morrow, and the quintessence of the attorney's request was for an hour's respite that he might attend a professional luncheon of which he was host. In our view, this was not an excessive request and could have been not improperly entertained by the presiding Justice, on the attorney's representation he would be ready to select a jury at 2:00 P.M. The attorney for the plaintiff did not balk, and on the record, displayed proper deference to the court, candidly indicating he had miscalculated his time, underestimating the court's celerity in the disposition of cases. On all the facts and circumstances, as reflected on the record of colloquy between court and counsel, we feel the penalty in this instance too harsh. A more delicate balancing process results in the imposition of heavier costs than are normally imposed on a motion, rather than a complete dismissal. "It must be borne in mind, moreover, that dismissal is a harsh penalty imposed on a client for his lawyer's failures; justified annoyance by the court at a lawyer's procrastination should not be vented on the litigant with a meritorious claim by closing the courts to him. If the action has merit, lesser penalties for delay are warranted". (4 Weinstein-Korn-Miller, par. 3216.04; see, also, Hensey Props. v. Lamagna, 23 A.D.2d 742; Giordano v. St. Clare's Hosp., 24 A.D.2d 568.) Regretfully, we again advert attention to the Rules of Supreme Court, New York and Bronx Counties (§ 660.5, subd. [c], par. [3], cl. [i]; 22 NYCRR 660.5[c][3][i]; Hahn v. Binder, 33 A.D.2d 903; Dozier v. Len Serv. Corp., 35 A.D.2d 699). The motion herein, properly made in Trial Term, Part I, should have been heard and determined by the Justice who presided in the calendar part at the time the cause was assigned. For expedition, we do herewith what the Justice in the calendar part should have done under all the facts and circumstances of this submission.
Concur — Capozzoli, J.P., McGivern, Markewich, Nunez and McNally, JJ.