Cichorek v. Cosgrove

• Decision Date: 22 April 1975
• Citation: 47 A.D.2d 883,367 N.Y.S.2d 7
• Parties: Helen CICHOREK et al., Plaintiffs-Respondents, v. Joseph V. COSGROVE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 7

367 N.Y.S.2d 7

47 A.D.2d 883

Helen CICHOREK et al., Plaintiffs-Respondents, v. Joseph V. COSGROVE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 22, 1975.

A. L. D'Isernia, New York City, for plaintiffs-respondents.

N. Bard, Brooklyn, for defendant-appellant.

Before STEVENS, P.J., and MURPHY, TILZER, CAPOZZOLI and LYNCH, JJ.

PER CURIAM.

Order, Supreme Court, Bronx County, entered in this malpractice action on November 19th, 1974 granting plaintiffs' motion to restore this action to the calendar, modified, in the exercise of discretion, by adding thereto a provision imposing $350 costs on plaintiffs' attorney payable to defendant, and, as so modified, the order is affirmed, without costs and without disbursements. The $350 is to be paid by plaintiffs' attorney to defendant within twenty (20) days after service of a copy of this order, with notice of entry, and, in the event that such payment is not forthcoming, an order may be entered hereon reversing the order appealed from, on the law, and in the exercise of discretion, with $40 costs and disbursements to appellant.

The original neglect of plaintiffs' attorney was compounded by his failure to promptly move to restore this action to the calendar.

In such cases, we have held that an attorney's neglect or inadvertent error should not deprive his client of his day in court; and that it is proper to save the action for the client, while imposing upon the attorney, personally, a penalty for his neglect. (Citing cases.)' (Moran v. Rynar, 39 A.D.2d 718, 719, 332 N.Y.S.2d 138, 141.)

Under the circumstances it was an improper exercise of discretion to grant plaintiffs' motion without the imposition of suitable terms. (Livingston v. Kaufman et al., 44 A.D.2d 668, 354 N.Y.S.2d 440.)

All concur except STEVENS, P.J., and LYNCH, J., who dissent in the following memorandum by LYNCH, J.:

We dissent and would reverse and deny the motion to restore the action to the calendar. Neither his illness, nor the pressure of his law practice, nor the contentiousness of opposing counsel should excuse the plaintiff's attorney's failure to prosecute this action in which the summons was served in June, 1963, in which examinations before trial have been adjourned twenty-four times, the case adjourned on the calendar call thirty-three times and, when a motion to restore the case to the calendar was denied for failure to supply an affidavit of merits, thirty-four months were...