Clarke v. New Rochelle Hospital Medical Center

149 A.D.2d 559, 539 N.Y.S.2d 1008, 1989 N.Y. App. Div. LEXIS 4998

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1989
• Status: Published

Opinion

In an action to recover damages for personal injuries resulting from medical malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Dachenhausen, J.), entered April 5, 1988, which denied his motion to vacate a judgment of the same court dismissing his complaint, with prejudice, for failure to prosecute.

Ordered that the order is affirmed, without costs or disbursements.

We find that counsel for the plaintiff failed to offer a valid excuse for not appearing ready for trial when, in accordance with the provisions of 22 NYCRR 125.1 (g), he had received notice in advance of the trial date. In view of the violation of the foregoing rule and the fact that the trial date had already been adjourned for approximately nine months at the behest of the plaintiff’s counsel, we find that it was not an improvident exercise of discretion for the Supreme Court to deny the plaintiff’s motion to vacate the dismissal of the complaint (see, 22 NYCRR 125.1 [g]; CPLR 5015 [a] [1]; Ford v Village of Croton-on-Hudson, 140 AD2d 666; Romer v Middletown School Dist., 137 Misc 2d 46). Mangano, J. P., Bracken, Kooper and Spatt, JJ., concur.