Community Network Service, Inc. v. Verizon New York, Inc.

48 A.D.3d 249, 849 N.Y.S.2d 777

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2008
• Status: Published

Opinion

Judgment, Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered September 26, 2007, dismissing plaintiffs action with prejudice for failure to prosecute, unanimously affirmed, without costs.

Dismissal of the action for failure to prosecute was proper where, on the scheduled date of trial, plaintiffs counsel refused to select a jury (22 NYCRR 202.27 [b]; and see Campos v New York City Health & Hosps. Corp., 307 AD2d 785 [2003]). Plaintiffs remedy lies in a motion to vacate in which it must “make a showing of a meritorious action and a reasonable excuse for [its] default” (id. at 785). Concur—Mazzarelli, J.P., Saxe, Friedman, Catterson and Acosta, JJ.