Wood v. Montefiore Medical Center (160 A.D.2d 487, 1990)

—Order, Supreme Court, Bronx County (Jack Turret, J.), entered on July 11, 1989, unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of directing that the action be restored to the Trial Calendar upon the payment of the sum of $500 personally by plaintiff’s counsel, as provided in the order, and otherwise affirmed, without costs. In the event that the condition is not complied with, defendants’ motion to dismiss is granted, with costs.

Under the circumstances, the trial court did not abuse its discretion in denying a continuance, declaring a mistrial, and marking the action off calendar (Matter of Anthony M., 63 NY2d 270, 283-284). However, in view of the trial court’s determination that a dismissal is not warranted, with which we agree, and in view of the request for "such * * * relief as * * * may [be] just and proper” in plaintiff’s cross motion, we believe that the trial court should have provided that the action be restored to the Trial Calendar upon compliance with the direction that plaintiff’s counsel personally pay the defendants the sum of $500 within 30 days after service of a copy of the order with notice of entry thereon. Concur—Murphy, P. J., Sullivan, Milonas, Kassal and Wallach, JJ.