Gliber v Choi

Gliber v Choi 2009 NY Slip Op 03930 [62 AD3d 525] May 19, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 1, 2009

Gerald Gliber, Respondent,
v
Benjamin B. Choi, M.D., Appellant, et al., Defendant.

—[*1] Law Office of Marian Polovy, New York (John C. Hunt of counsel), for appellant.

Arnold E. DiJoseph, III, New York, for respondent.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered on or about September 16, 2008, which granted the motion of defendant Benjamin B. Choi, M.D., to dismiss the action only to the extent of extending leave to defendant to seek sanctions, costs, and any other appropriate relief if plaintiff's attorney did not appear at the next conference, unanimously modified, on the law and the facts, to grant the motion in its entirety unless plaintiff's counsel pays to defendant's counsel $3,500 within 45 day of service of a copy of this order, and otherwise affirmed, without costs.

Plaintiff's counsel failed to appear at court conferences on October 30, 2007, November 27, 2007, March 28, 2008, and May 21, 2008. After warning plaintiff in a letter that he was going to move to dismiss the action for counsel's failure to appear at four conferences, defendant duly made a motion on notice to plaintiff. Plaintiff failed to oppose the motion.

On the appeal plaintiff's counsel makes no claim of a failure to receive notice of the scheduled conferences.

Under the circumstances, the motion court should have, at a minimum, penalized plaintiff's counsel as above indicated. Concur—Andrias, J.P., Saxe, Sweeny, Nardelli and Freedman, JJ.