Yoon v. Fordham University

249 A.D.2d 176, 672 N.Y.S.2d 677, 1998 N.Y. App. Div. LEXIS 4420

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered March 28, 1997, which denied plaintiffs motion to vacate a default judgment dismissing the complaint, unanimously affirmed, without costs.

The action was properly dismissed in view of plaintiff’s repeated failure to appear at trial despite awareness of the trial dates and the warnings of counsel of the consequences of not appearing; plaintiffs general lack of diligence in pursuing the matter, pending for over a decade; and the prejudice that would result to defendant in having to produce witnesses to testify as to facts dating back to 1981 (CPLR 3215 [a]; see, Padilla v DaSilva, 166 AD2d 211; Martinez v Otis El. Co., 213 AD2d 523). The pendency of plaintiff’s motion for partial summary judgment on liability, made on the eve of trial, did not automatically stay the trial and would not have obviated the need for a trial on damages even if it had been granted, and no reason appears for any contrary understanding by plaintiff. We have considered plaintiffs other arguments and find them to be without merit. Concur — Sullivan, J. P., Rosenberger, Rubin, Tom and Andrias, JJ.