Capano v. Watsky

Order, Supreme Court, Bronx County, entered May 8, 1978, striking the action from the court’s Trial Calendar and precluding plaintiff from filing a note of issue or making any motion to restore the action to the Trial Calendar until payment of $500 costs and filing a full medical affidavit, unanimously modified, on the facts and in the exercise of discretion, without costs or disbursements, to restore the action to the Trial Calendar on condition that plaintiff pay costs of $150, to delete the requirement of filing a medical affidavit, and otherwise affirmed. After a jury had been drawn and settlement efforts had failed, plaintiff sought an adjournment claiming *701an attack of illness. Unable to obtain a medical affidavit overnight, he supplied a letter from a doctor and the court, after examining plaintiff under oath, struck the case from the calendar and imposed the restoration conditions over the protest of plaintiff that he was ready to proceed if an adjournment were not to be granted. Under the circumstances, to require the filing in the future of a medical affidavit of a condition claimed to have been transitory and to impose $500 in costs appear needlessly punitive. Concur—Birns, J. P., Fein, Lane, Lynch and Sandler, JJ.