Englert v. Hart

Order and judgment unanimously reversed, on the law, without costs, and plaintiff’s motion granted. Memorandum: It was an improvident exercise of discretion for the trial court to deny plaintiff’s motion to vacate a prior order denying plaintiff’s motion for a continuance (see, CPLR 4402). The record indicates that plaintiff’s counsel made diligent efforts to arrange for plaintiff’s presence at trial but that plaintiff was unable to attend due to the reoccurrence of osteoarthritis of the cervical and lumbar spine. Plaintiff’s physician verified this condition and advised plaintiff against…