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Supreme Court, Appellate Division, Second Department, New York.

Gladys ROSARIO, appellant, v. David ELISHIS, etc., et al., respondents.

Decided: March 20, 2000

LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, MYRIAM J. ALTMAN and LEO F. McGINITY, JJ. Charles Berkman, Brooklyn, N.Y. (Robert Tolchin and Charles Berkman of counsel), for appellant. Aaronson, Rappaport, Feinstein & Deustch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for respondents Maimonides Medical Center and James Marzec.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Garry, J.), dated April 16, 1999, which denied her motion to vacate an order of the same court, dated January 20, 1999, which dismissed the action for counsel's failure to appear for jury selection.

ORDERED that the order is reversed, with costs payable by the respondents Maimonides Medical Center and James Marzec, the motion is granted, the order dated January 20, 1999, is vacated, and the action is remitted to the Supreme Court, Kings County, for trial.

On the scheduled trial date of this action, all three trial attorneys in the four-attorney office of the plaintiff's counsel were actually engaged in ongoing trials.   The court directed that a jury slip be submitted and the case was then adjourned for several days because of the unavailability of jurors and a court holiday.   On the morning of the adjourned date, one of the ongoing trials was settled in Supreme Court, Richmond County, and counsel called to inform the court that he was on his way from Staten Island to select a jury in this case.   Approximately one hour later and shortly before counsel arrived, the court granted an oral application made by certain of the defendants to dismiss the case.

The plaintiff then moved to vacate the order dismissing the action.   The court denied the motion.   Under the circumstances of this case, the court improvidently exercised its discretion in denying the plaintiff's motion (see, Mayo v. New York Tel. Co., 175 A.D.2d 390, 572 N.Y.S.2d 99;  Matter of Poole v. Mayer, 112 A.D.2d 853, 492 N.Y.S.2d 765; 22 NYCRR part 125).


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