Howard Behrens, Appellant, v. Original Graphics, Inc., et al., Respondents

Howard Behrens, Appellant, v Original Graphics, Inc., et al., Respondents. [691 NYS2d 60] [MAJORITY] —Order and judgment (one paper), Supreme Court, New York County (Jane Solomon, J.), entered January 7, v1998, which, severed and stayed defendants’ counterclaims, and, after a nonjury trial, granted judgment in favor of defendants, declaring that defendants were not in default under certain agreements, that plaintiff was in default under and had materially breached the agreements, and dismissed the balance of plaintiffs complaint, with prejudice, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, the order and judgment vacated and the matter remanded for a new trial before a different Justice. Given plaintiffs reliance upon the erroneous advice of his Maryland bankruptcy counsel as to the effect of the automatic stay provisions of the Bankruptcy Code (11 USC § 362 [a] [1]), as well as the other circumstances presented, it was an improvident exercise of discretion to deny plaintiffs request for a short continuance in the midst of trial and to dismiss the complaint, essentially on the ground of abandonment. Inasmuch as the matter is being remanded for a new trial, we deem it advisable that it be assigned to a different Justice. Concur — Williams, J. P., Wallach, Andrias and Saxe, JJ.