Chang Hyun Kim v. Consolidated Edison, Inc.

39 A.D.3d 390, 835 N.Y.S.2d 64

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Howard R Silver, J.), entered February 28, 2006, which, in an action for personal injuries, denied plaintiffs motion to, inter alia, restore the action to the trial calendar, unanimously affirmed, without costs.

Plaintiff states that he did not appear in court on the date the trial was scheduled to commence because he was in South Korea visiting his elderly and “very ill” mother. Plaintiffs passport shows that he entered Korea one day before the scheduled trial date and returned to the United States about two weeks later. Plaintiffs affidavit, however, does not specify his mother’s illness or explain why the illness required that he be with her at precisely the time of the trial. Nor do his papers include any medical evidence substantiating his mother’s illness. Although plaintiffs attorney knew that plaintiff would not be appearing and so advised his adversary three days before the trial date, it does not appear that he made any attempt to inform the trial court beforehand. Under the circumstances presented, plaintiffs motion to restore was properly denied on the ground that he failed to show a reasonable excuse for his failure to appear. We have considered plaintiff’s other arguments and find them unavailing. Concur—Andrias, J.E, Marlow, Sullivan, Gonzalez and Kavanagh, JJ.