Michael Savarese, Plaintiff, v. Nicotra Group, LLC, et al., Respondents, et al., Defendant. Schwartz Goldstone & Campisi, LLP, Nonparty Appellants; Baxter Smith Tassan & Shapiro, P.C., et al., Nonparty Respondents. (And Other Actions.)

Michael Savarese, Plaintiff, v Nicotra Group, LLC, et al., Respondents, et al., Defendant. Schwartz Goldstone & Campisi, LLP, Nonparty Appellants; Baxter Smith Tassan & Shapiro, P.C., et al., Nonparty Respondents. (And Other Actions.) [845 NYS2d 40] [MAJORITY] Order, Supreme Court, New York County (Paul G. Feinman, J.), entered on or about April 19, 2007, which conditioned retrial on plaintiffs counsel paying costs in the aggregate amount of $29,722.40 to defense counsel, unanimously affirmed, with costs. The court properly awarded costs to defense counsel, since the record establishes that plaintiffs counsel had been unprepared on the issue of damages and was unable to go forward without a 10-day continuance. As a result, the court granted plaintiffs counsel’s mistrial motion, and it did so on terms that were “just” within the meaning of CPLR 4402. Concur—Mazzarelli, J.P., Marlow, Williams, Catterson and Kavanagh, JJ.