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Meredith v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 16, 2009

KAREN MEREDITH, ETC., ET AL., PLAINTIFFS-APPELLANTS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered January 24, 2007, which denied plaintiffs' motion to vacate the order of dismissal and restore the action to the trial calendar, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Sweeny, Moskowitz, Renwick, JJ.

109405/02

We reject plaintiff's challenge to the jurisdiction of the judicial hearing officer. While the record does not contain an order of reference, plaintiffs actively participated in the proceedings before him without objection (see Matter of Heather J., 244 AD2d 762, 763 [1997]).

The hearing officer's refusal to adjourn, after a jury had been empaneled, to allow plaintiffs to seek an amendment of the complaint or bill of particulars cannot serve as a basis for plaintiffs' refusal to proceed (see Vink v Ranawat, 48 AD3d 212 [2008]). Plaintiffs cannot avoid the consequences of the acts or omissions of their retained counsel (see Drake v Bates, 49 AD3d 1098 [2008]), whose intentional default, based on the misrepresentation that his firm had been discharged and he could not proceed, is ipso facto inexcusable (see Wilf v Halpern, 234 AD2d 154 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090416

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