Walker v. City of New York

Appellate Division of the Supreme Court of New York

Walker v. City of New York

107 A.D.3d 577, 969 N.Y.S.2d 3

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

DecidedJune 20, 2013

StatusPublished

This text of 107 A.D.3d 577 (Walker v. City of New York) 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

Walker v. City of New York, 107 A.D.3d 577, 969 N.Y.S.2d 3 (N.Y. Ct. App. 2013).

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Opinion

— Order, Supreme Court, New York County (Barbara Jaffe, J.), entered June 19, 2012, which, in this action for personal injuries, denied plaintiffs motion to vacate the dismissal of her action and to restore the case to the trial calendar, unanimously affirmed, without costs.

The record demonstrates that plaintiff was granted one eve-of-trial adjournment on the ground that her expert was unavail[578]*578able, and upon the stipulation that no further adjournments would be permitted. On the adjourned trial date, the action was dismissed with prejudice when plaintiff was again unprepared to try the case because her expert “can’t come.” When plaintiff moved to restore the matter, almost one year later, she still offered no explanation as to why her expert had been unavailable. Accordingly, given the lack of a reasonable excuse for the default, and the fact that plaintiff had stipulated that no further adjournments would be permitted, the motion was properly denied and there was no need to consider whether plaintiff had demonstrated a meritorious cause of action (see e.g. M.R. v 2526 Valentine LLC, 58 AD3d 530, 532 [1st Dept 2009]). Concur— Mazzarelli, J.P., Renwick, Manzanet-Daniels, Gische and Clark, JJ.

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— Order, Supreme Court, New York County (Barbara Jaffe, J.), entered June 19, 2012, which, in this action for personal injuries, denied plaintiffs motion to vacate the dismissal of her action and to restore the case to the trial calendar, unanimously affirmed, without costs.

The record demonstrates that plaintiff was granted one eve-of-trial adjournment on the ground that her expert was unavail[578]*578able, and upon the stipulation that no further adjournments would be permitted. On the adjourned trial date, the action was dismissed with prejudice when plaintiff was again unprepared to try the case because her expert “can’t come.” When plaintiff moved to restore the matter, almost one year later, she still offered no explanation as to why her expert had been unavailable. Accordingly, given the lack of a reasonable excuse for the default, and the fact that plaintiff had stipulated that no further adjournments would be permitted, the motion was properly denied and there was no need to consider whether plaintiff had demonstrated a meritorious cause of action (see e.g. M.R. v 2526 Valentine LLC, 58 AD3d 530, 532 [1st Dept 2009]). Concur— Mazzarelli, J.P., Renwick, Manzanet-Daniels, Gische and Clark, JJ.

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Bluebook (online)

107 A.D.3d 577, 969 N.Y.S.2d 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-city-of-new-york-nyappdiv-2013.

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