Majority
p. 982Mildred Kraljic, Also Known as Lee Kroll, Respondent, v. Steinway Transit Corp., Defendant. Charles J. Smyth, Defendant and Third-Party Plaintiff-Appellant; Steinway Transit Corp., Third-Party Defendant.
In a negligence action to recover damages for personal injuries, defendant Smyth appeals from an order of the Supreme Court, Queens County, dated June 6, 1973, which conditionally denied his motion to dismiss the complaint for lack of prosecution, under CPLR 3216, the condition being that plaintiff place the case on the calendar within a stated time. Order modified by adding thereto a provision that the denial of the motion is on the further condition that plain
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tiff’s attorney personally pay appellant $150 costs. Said $150 costs must be paid within 20 days after entry of the order to be made hereon. As so modified, order affirmed, with $20 costs to appellant. While we do' not consider the circumstances herein sufficient to warrant dismissal of the complaint, there was an inordinate delay attributable to plaintiff’s attorney for which plaintiff should not be penalized, but which warrants imposing costs against counsel. Gulotta, P. J., Hopkins, Latham and Brennan, JJ., concur.