Opinion
June 15, 1976
Judgment, Supreme Court, New York County, entered April 29, 1975, dismissing the complaint, unanimously reversed, in the exercise of discretion, and the case restored to the calendar, without costs and without disbursements, conditioned on payment to defendant-respondent by plaintiff-appellant's counsel personally of $350 costs within 20 days after service of a copy of the order entered hereon, or alternatively upon that condition not being performed, affirmed, with $40 costs and disbursements to respondent. Plaintiff's counsel's request for a further brief adjournment, denied by the trial court and followed by dismissal, was not based upon a substantial reason. However, plaintiff itself should not be denied its day in court because its lawyer had not brought a witness to court. The action is by no means frivolous, and is worthy of resolution at trial.
Concur — Markewich, J.P., Kupferman, Lupiano, Silverman and Lane, JJ.