Opinion
June 19, 1967
Appeal by plaintiff from (1) an order of the Supreme Court, Nassau County, entered December 6, 1966, which denied his motion to vacate the dismissal of the action and to restore the action to the Trial Calendar and (2) so much of an order of the same court, entered January 6, 1967 and made on reargument, as adhered to the original decision. Appeal from order entered December 6, 1966, dismissed, without costs, as academic. That order was superseded by the order entered January 6, 1967 granting reargument. Order entered January 6, 1967 reversed insofar as appealed from and plaintiff's original motion granted, with $10 costs and disbursements to each of the three respondents, payable by appellant, on condition that appellant's counsel pay $50 to each of the respondents. Otherwise, the order is affirmed insofar as appealed from, with $10 costs and disbursements to each of the three respondents. It appears that plaintiff's counsel's failure to appear on the Call Calendar in Nassau County was not a willful default but was due to his actual engagement in another case in the Supreme Court, Bronx County — an engagement from which the Justice there presiding would not release him. While we agree with the calendar control principles and procedures followed by the Justice at the Trial Term in Nassau County in this case, we believe the interests of justice here warrant vacatur of the dismissal of the action. We further believe that plaintiff's attorneys should pay $50 to each of the defendants as a condition for opening the default, since the dismissal might not have occurred, and the subsequent proceedings to open the default might not have been necessary, if they had complied with subdivision (b) of rule 2 of the Rules of the Supreme Court, Nassau County. Beldock, P.J., Rabin, Benjamin and Munder, JJ., concur; Christ, J., concurs in the dismissal of the appeal from the order entered December 6, 1966, but dissents from the reversal of the order entered January 6, 1967 and votes to affirm that order insofar as appealed from. [ 53 Misc.2d 1075.]