Opinion
February 3, 1969
In an action to recover damages for personal injuries, plaintiffs appeal from an order of the Supreme Court, Kings County, dated June 21, 1968, which denied their motion to restore the case to the Trial Calendar, following its dismissal because of their failure to appear on a calender call. Order reversed, on the law and the facts and in the exercise of discretion, without costs, and plaintiffs' motion granted, upon condition that within 10 days after entry of the order hereon plaintiffs' attorneys pay defendants $250; otherwise, order affirmed, with $50 costs and disbursements. Ordinarily, the discretion of the learned Justice at Special Term on a motion of this character would not be disturbed. However, we have concluded that under the facts presented in this case, as well as in Milana v. Hotel Taft ( 31 A.D.2d 813) and Flowers v. Water Front Haulage Corp. ( 31 A.D.2d 811), both decided herewith, including the circumstances leading to the failure to answer the calendar call and the onerous consequences of the dismissal to plaintiffs and their attorneys, the cases should be restored to the calendar for trial, upon the condition stated. Christ, Acting P.J., Brennan, Benjamin, Munder and Martuscello, JJ., concur.