
    Joseph Lipshie and Company, Appellant, v Norman Zeiler, Respondent.
   Order, Supreme Court, New York County, entered on July 2, 1975, denying plaintiff’s motion to vacate an order dismissing plaintiff’s action and to restore said action to the calendar, unanimously reversed, on the law, on the facts, and in the exercise of discretion, so as to grant motion to vacate said dismissal and to restore said action to the Trial Calendar, all without prejudice to defendant’s renewal of his motion for summary judgment which was withdrawn pending the present appeal. Appellant shall recover of respondent $40 costs and disbursements of this appeal. The failure of plaintiffs counsel to appear before the trial court on December 10, 1974 was occasioned by his required appearance before another Supreme Court Justice at Trial Term in Kings County. Said counsel appeared before the Trial Justice in New York County within a short time after the dismissal herein and attempted to explain the reason for his failure to timely appear for the calendar call. It appears that he had his secretary on the morning of that day advise the court clerk of his delay in appearance, but the attempted explanations were not accepted by the court. Following appropriate notice of motion, the plaintiff sought an order vacating the dismissal and restoring the action to the calendar and in that connection submitted an affidavit reciting reasons for counsel’s nonappearance and an affidavit of merit concerning the causes of action which had been dismissed. We conclude, on the basis of these affidavits and all the circumstances shown in the record, that it was an improvident exercise of discretion not to have granted the relief sought by plaintiff. Concur—Kupferman, J. P., Murphy, Lupiano, Birns and Lane, JJ.  