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Community Network Service, Inc. v. Verizon New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 18, 2009

COMMUNITY NETWORK SERVICE, INC., PLAINTIFF-APPELLANT,
v.
VERIZON NEW YORK, INC., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered November 17, 2008, which denied plaintiff's motion to vacate the judgment, same court and J.H.O., entered September 26, 2007, dismissing the action with prejudice for failure to proceed to trial, unanimously affirmed, with 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.

Andrias, J.P., Catterson, Renwick, DeGrasse, Freedman, JJ.

605102/00

We reject plaintiff's argument that the trial court's assertedly erroneous oral, in limine ruling limiting plaintiff's proof of damages gave it a reasonable excuse for refusing to proceed to trial (see 48 AD3d 249 [2008]). A litigation strategy cannot be a reasonable excuse for a default (cf. Manhattan Vermeer Co. v Guterman, 179 AD2d 561 [1992]). Plaintiff's remedy was not to defy the court's order to proceed, but to make an offer of proof, concede that it has no case, and then appeal the in limine ruling as part of an appeal from the final judgment. Absent a reasonable excuse we need not consider the merits of the action.

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

20090618

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