Ocasio v. St. Barnabas Hospital for Chronic Diseases

Order, Supreme Court, Bronx County, entered on December 26, 1972, denying plaintiff’s motion for leave to file a statement of readiness and restore the case to the calendar, unanimously reversed, on the law and in the exercise of discretion, without costs and without disbursements, and the motion granted, but only on condition that plaintiff-appellant’s attorneys, personally, pay to respondents the sum of $250 imposed as costs for their law office failure within 30 days after the service upon plaintiff-appellant by respondents of a copy of the order entered hereon, with notice of entry. If said sum is not timely paid, said order is in all respects affirmed. The second action commenced by plaintiff after denial of her aforesaid motion is dismissed, sua sponte, on the ground that there is now another action pending between the same parties for the same relief. The appeal from the order of said court, entered June 7, 1973, denying a motion to dismiss such second action is consequently unanimously dismissed, as moot, without costs and without disbursements. Plaintiff’s second motion to restore the case to the calendar after it was stricken for failure to file a statement *554of readiness, made pursuant to leave granted by the prior order denying such relief, sufficiently complied with the court’s applicable rule (22 NYCRR 660.4 [d]), and the refusal to conditionally grant such relief, by imposition of an appropriate penalty on offending counsel, was an improvident exercise of discretion. Concur — Nunez, J. P., Murphy, Lane, Tilzer and Capozzoli, JJ.