Gruntal & Co. v. Hyman 48 A.D.2d 807

Order, Supreme Court, New York County, entered October 11, 1974, unanimously reversed, in the exercise of discretion, the motion to set aside a judgment on inquest granted to the extent of restoring the cause for trial, with $60 costs and disbursements to abide the event. Defendant-appellant was in court on a July day, and her attorney stated she was too ill to proceed to trial and requested an adjournment. The application was summarily denied, the court characterizing the illness as feigned, and she was directed to proceed to trial before another Judge. She refused to do so on the same ground, and inquest was taken. The affidavit of merit is sufficient, the judgment not being based on a default in the usual sense. A medical certificate is found in the motion papers. There can be no prejudice to plaintiff, and there will be no undue burden on the court because the trial will apparently be short. In the circumstances, denial of the motion was improvident. Concur—Markewich, J. P., Murphy, Lupiano, Tilzer and Capozzoli, JJ.