Fleetwood Paving, Inc. v. Consolidated Edison Co. of New York, Inc.

187 A.D.2d 697, 591 N.Y.S.2d 794, 1992 N.Y. App. Div. LEXIS 13419

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1992
• Status: Published

Opinion

In an action to recover damages for breach of contract, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Donovan, J.), entered October 26, 1989, which granted the defendant’s motion for partial summary judgment and dismissed the fifth cause of action asserted in the complaint, and (2) an order of the same court, entered March 15, 1990, which dismissed the remaining four causes of action asserted in the complaint.

Ordered that the orders are affirmed, with one bill of costs.

We find that the Supreme Court did not err in dismissing the complaint when the plaintiff failed to appear on the date set for jury selection (see, e.g., Headley v Noto, 22 NY2d 1; Wright v Defelice & Son, 22 AD2d 962, affd 17 NY2d 586). Although contacted directly by the court, the plaintiff’s attorney refused to proceed with jury selection, and the matter had been previously adjourned on numerous occasions at the plaintiff’s request.

In view of our determination, the issue of whether the court properly granted the defendant’s motion for partial summary judgment on the fifth cause of action is academic. However, we note our agreement with the Supreme Court that the plaintiff failed to allege sufficient facts to support the claim that the defendant was liable for consequential damages which were attributed to the financial failure of the plaintiff (see generally, American List Corp. v U.S. News & World Report, 75 NY2d 38; Kenford Co. v County of Erie, 73 NY2d 312). Sullivan, J. P., Lawrence, Miller and O’Brien, JJ., concur.