Laurelli v. Memorial Hospital for Cancer & Allied Diseases , 411 N.Y.S.2d 545 ( 1978 )

In a medical malpractice action, the appeal is from an order of the Supreme Court, Westchester County, dated February 9, 1978, which, inter alia, granted plaintiffs’ motion to vacate the dismissal of this action. Order affirmed, without costs or disbursements, on condition that plaintiffs’ attorney personally pay the sum of $1,000 to the defendants within 20 days after service upon plaintiffs of a copy of the order made hereon, together with notice of entry thereof; in the event such condition is not complied with, order reversed, with $50 costs and disbursements, and motion denied. The examinations before trial shall proceed at such times and places as shall be fixed in written notices of not less than 10 days each to be given by the parties, or at such other times and places as the parties may agree. In the light of the showing by the plaintiffs that their action has merit and that the delay has been due in large part to the severe and extended illness of their attorney, and the fact that defendants will not be prejudiced by the delay, Special Term was within its discretion in restoring the matter to the Trial Calendar. Nevertheless, since plaintiffs’ attorney was acutely ill, he should have suggested that they seek other counsel, rather than jeopardize their rights in this action. For his part in this protracted litigation, plaintiffs’ attorney is directed to personally pay $1,000 to the defendants for their costs in opposing the motion to vacate the prior dismissal. Mollen, P. J., Hopkins, Titone, Hawkins and O’Connor, JJ., concur.