PASSARO v. Neil H. Bander, M.D., Defendant-Appellant. (2001)

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered August 3, 2000, in a medical malpractice action, awarding plaintiff damages in the total principal amount of $500,000, after defendant's answer was stricken for failure to proceed to trial, unanimously modified, on the law, to vacate the award of damages and remand for a trial thereon, and otherwise affirmed, without costs.   Order, same court and Justice, entered December 1, 2000, which denied defendant's motion to vacate the judgment, unanimously dismissed, without costs, as academic in view of the foregoing.

 Defendant's request to adjourn the trial based on his attorney's engagement in another trial was properly denied where the attorney's firm had at least one other attorney who was familiar with the case, and competent to take over the defense in this trial, and had sufficient time and warning of the conflicting engagements to prepare someone to do so (22 NYCRR 125.1[e][2] [iv] ).   However, in awarding damages based on the testimony it heard at the prior mistrial, the trial court erroneously usurped the role of the jury, and we modify accordingly.