Opinion
May 31, 1977
Order, Supreme Court, New York County, entered October 6, 1976, granting the motion of defendants (other than defendant hospital and defendant Baronberg) and the cross motion of defendant hospital to dismiss the action for want of prosecution pursuant to CPLR 3216, unanimously modified, on the law and in the exercise of discretion, to the extent of granting the motion and cross motion unless plaintiff's counsel personally pays to the defendants-respondents the sum of $500 plus one bill of $60 costs and disbursements, and, as so modified, affirmed. In this action for, inter alia, wrongful death which resulted from the alleged negligence and malpractice of defendants in the care and treatment rendered to Doris B. Thompson, we find that there was no intention by plaintiff to abandon the action and that there was no undue prejudice to defendants because of the delay by plaintiff's counsel in prosecuting the action. Under the circumstances and on this record, the plaintiff should not be required to suffer the consequences of his attorney's conduct. While this is so, however, the avoidance of dismissal of the action would be justified only by the imposition of conditions and, accordingly, the imposition of the above costs on counsel personally is deemed more appropriate remedy than dismissal of the action (see Newell v Lane, 45 A.D.2d 704). Settle order on notice.
Concur — Kupferman, J.P., Lupiano, Birns and Capozzoli, JJ.