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

Appellate Division of the Supreme Court of New York

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

63 A.D.3d 547, 880 N.Y.S.2d 483

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 18, 2009

StatusPublished

This text of 63 A.D.3d 547 (Community Network Service, Inc. v. Verizon New York, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Community Network Service, Inc. v. Verizon New York, Inc., 63 A.D.3d 547, 880 N.Y.S.2d 483 (N.Y. Ct. App. 2009).

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Opinion

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered November 17, 2008, which denied plaintiff’s motion to vacate the judgment, same court and J.H.O., entered September 26, 2007, dismissing the action with prejudice for failure to proceed to trial, unanimously affirmed, with costs.

We reject plaintiffs argument that the trial court’s assertedly erroneous oral, in limine ruling limiting plaintiffs proof of damages gave it a reasonable excuse for refusing to proceed to trial (see 48 AD3d 249 [2008]). A litigation strategy cannot be a reasonable excuse for a default (cf. Manhattan Vermeer Co. v Guterman, 179 AD2d 561 [1992]). Flaintiff s remedy was not to defy the court’s order to proceed, but to make an offer of proof, concede that it has no case, and then appeal the in limine ruling as part of an appeal from the final judgment.

Absent a reasonable excuse we need not consider the merits of the action. Concur—Andrias, J.E, Catterson, Renwick, DeGrasse and Freedman, JJ.

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Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered November 17, 2008, which denied plaintiff’s motion to vacate the judgment, same court and J.H.O., entered September 26, 2007, dismissing the action with prejudice for failure to proceed to trial, unanimously affirmed, with costs.

We reject plaintiffs argument that the trial court’s assertedly erroneous oral, in limine ruling limiting plaintiffs proof of damages gave it a reasonable excuse for refusing to proceed to trial (see 48 AD3d 249 [2008]). A litigation strategy cannot be a reasonable excuse for a default (cf. Manhattan Vermeer Co. v Guterman, 179 AD2d 561 [1992]). Flaintiff s remedy was not to defy the court’s order to proceed, but to make an offer of proof, concede that it has no case, and then appeal the in limine ruling as part of an appeal from the final judgment.

Absent a reasonable excuse we need not consider the merits of the action. Concur—Andrias, J.E, Catterson, Renwick, DeGrasse and Freedman, JJ.

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Bluebook (online)

63 A.D.3d 547, 880 N.Y.S.2d 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/community-network-service-inc-v-verizon-new-york-inc-nyappdiv-2009.

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