Ertzel v. Hotel Wentworth

Appellate Division of the Supreme Court of New York

Ertzel v. Hotel Wentworth

309 A.D.2d 652, 765 N.Y.S.2d 850, 2003 N.Y. App. Div. LEXIS 10956

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

DecidedOctober 23, 2003

StatusPublished

This text of 309 A.D.2d 652 (Ertzel v. Hotel Wentworth) 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

Ertzel v. Hotel Wentworth, 309 A.D.2d 652, 765 N.Y.S.2d 850, 2003 N.Y. App. Div. LEXIS 10956 (N.Y. Ct. App. 2003).

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Opinion

Order, Supreme Court, New York [653]*653County (Louise Gruner Gans, J.), entered July 18, 2002, which denied plaintiffs motion to vacate the dismissal of the action and granted renewal and, upon renewal, denied further adjournment of the action, unanimously affirmed, with costs.

Plaintiff, a foreign national, alleges that he was robbed of money and diamonds while a guest at defendant hotel. Supreme Court adjourned trial on numerous occasions based on undocumented representations as to plaintiffs ill health when, in reality, plaintiff had been incarcerated, abroad, for a period of 12 months upon his conviction for issuing bad checks. Under these circumstances, denial of plaintiffs motion to vacate the dismissal of his action was a provident exercise of discretion. The deception employed to obtain adjournments does not constitute a reasonable excuse for plaintiffs default in appearance (Siskin v 221 Sullivan St. Realty Corp., 180 AD2d 544 [1992], lv dismissed 80 NY2d 826 [1992]; Padilla v DaSilva, 166 AD2d 211 [1990]). Nor did plaintiff offer any evidence to establish the merit of his case (CPLR 5015 [a] [1]; see Crespo v A.D.A. Mgt., 292 AD2d 5, 9 [2002]; Mediavilla v Gurman, 272 AD2d 146, 148 [2000]). Concur — Saxe, J.P., Rosenberger, Friedman and Marlow, JJ.

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Order, Supreme Court, New York [653]*653County (Louise Gruner Gans, J.), entered July 18, 2002, which denied plaintiffs motion to vacate the dismissal of the action and granted renewal and, upon renewal, denied further adjournment of the action, unanimously affirmed, with costs.

Plaintiff, a foreign national, alleges that he was robbed of money and diamonds while a guest at defendant hotel. Supreme Court adjourned trial on numerous occasions based on undocumented representations as to plaintiffs ill health when, in reality, plaintiff had been incarcerated, abroad, for a period of 12 months upon his conviction for issuing bad checks. Under these circumstances, denial of plaintiffs motion to vacate the dismissal of his action was a provident exercise of discretion. The deception employed to obtain adjournments does not constitute a reasonable excuse for plaintiffs default in appearance (Siskin v 221 Sullivan St. Realty Corp., 180 AD2d 544 [1992], lv dismissed 80 NY2d 826 [1992]; Padilla v DaSilva, 166 AD2d 211 [1990]). Nor did plaintiff offer any evidence to establish the merit of his case (CPLR 5015 [a] [1]; see Crespo v A.D.A. Mgt., 292 AD2d 5, 9 [2002]; Mediavilla v Gurman, 272 AD2d 146, 148 [2000]). Concur — Saxe, J.P., Rosenberger, Friedman and Marlow, JJ.

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Bluebook (online)

309 A.D.2d 652, 765 N.Y.S.2d 850, 2003 N.Y. App. Div. LEXIS 10956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ertzel-v-hotel-wentworth-nyappdiv-2003.

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