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LUELLA BREAZEAL v. RENT-A-CAR CLUB AMERICA (05/19/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 19, 1969

LUELLA BREAZEAL, APPELLANT,
v.
RENT-A-CAR CLUB OF AMERICA, DEFENDANT, AND MARION HARRIS, RESPONDENT

In a negligence action to recover damages for personal injury, plaintiff appeals from an order of the Supreme Court, Kings County, dated July 20, 1968, which denied her motion to restore the action to the Ready Day Calendar.

Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

As we recently stated in Barrada v. Target Constr. Corp. (31 A.D.2d 810), we would not ordinarily disturb the exercise of discretion in such a case. This caveat is particularly true under the facts of this case where a jury had been already selected. The excuse proffered by plaintiff's trial lawyer for not proceeding to trial was not satisfactory (cf. Gnoj v. City of New York, 29 A.D.2d 404). Nevertheless, under the special circumstances here presented, the onerous consequences visited upon a seriously injured plaintiff passenger outweigh the damage and prejudice inflicted upon respondent and upon the control of the calendar in the trial parts. The tactics of the plaintiff's attorney, however, warrant the imposition of personal costs as a precondition to the restoration of this case to the calendar.

Disposition

Order reversed, on the law and the facts and in the exercise of discretion, without costs, and motion granted, upon condition that plaintiff's attorneys shall personally pay respondent $250; otherwise, order affirmed, with $50 costs and disbursements. Said $250 shall be paid within 10 days after entry of the order hereon.

19690519

© 1998 VersusLaw Inc.



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