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

Gerald Gliber, Respondent, v Benjamin B. Choi, M.D., Appellant, et al., Defendant. [878 NYS2d 617] [MAJORITY] 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. Plaintiffs 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 plaintiffs 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.