Opinion
June 7, 1973
Order, Supreme Court, Bronx County, entered August 21, 1972, denying plaintiff's motion to vacate and set aside the dismissal of her action and to restore the same to the Trial Calendar, unanimously reversed, on the law and in the exercise of discretion, and the motion granted, on condition that plaintiff's attorneys, personally, pay to defendants Mary C. Savarese, Gaetano Tortora, Pasquale Tortora, and Louis Russo the sum of $500 plus the $40 costs and disbursements of this appeal within 20 days after they have been served by said defendants with a copy of the bill of costs to be taxed hereunder. Although we fully appreciate Special Term's justified annoyance because of counsel's failure to appear for trial on several occasions, we nevertheless believe that, upon the record before us, the penalty imposed was unduly harsh. The final default does not appear to have been willful; and we find no indication of any intention by plaintiff to abandon the action or of undue prejudice to defendants if the requested relief is granted. Accordingly, under the circumstances here presented, we conclude that plaintiff should not be required to suffer the consequences of her attorneys' conduct and that the imposition of the above costs upon offending counsel personally is a more appropriate penalty.
Concur — Stevens, P.J., Nunez, Kupferman, Murphy and Lane, JJ.