New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
March 5, 2012
HOUSSAM ELACHKAR, APPELLANT, --
GEICO GENERAL INSURANCE COMPANY, DEFENDANT, -AND- SHARON PEREZ, RESPONDENT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 11, 2010.
Elachkar v GEICO Gen. Ins. Co.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 5, 2012
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The order denied plaintiff's motion to vacate so much of a prior order as had granted, on default, the branch of defendants' motion seeking to dismiss so much of the complaint as was against defendant Sharon Perez.
ORDERED that the order is affirmed, without costs.
In this action to recover for property damage, defendants moved to dismiss the complaint, which motion was granted on default. Thereafter, plaintiff moved to vacate the dismissal and restore the action to the trial calendar. Defendants opposed the motion. By order entered February 4, 2010, the Civil Court (Devin P. Cohen, J.) denied the branch of plaintiff's motion seeking to vacate the dismissal as to defendant GEICO General Insurance Company and granted the branch of the motion seeking to vacate the dismissal as to defendant Sharon Perez solely to the extent of setting the matter down for a traverse hearing regarding service of process on Perez, to be held on March 11, 2010. The court indicated that a final disposition of the branch of plaintiff's motion seeking to vacate the dismissal as to defendant Perez would be determined on that date. On March 11, 2010, plaintiff, appearing pro se, made an application for an adjournment of the traverse hearing as neither his process server nor his attorney were present. By order entered March 11, 2010, the Civil Court (Katherine A. Levine, J.) denied plaintiff's request for an adjournment, finding that plaintiff had not provided a reasonable excuse why his process server had not appeared and had not proffered a letter indicating that an attorney had been retained or had entered an appearance on his behalf. Having denied the request for an adjournment, the court adhered to the prior order dismissing the complaint as to defendant Perez.
The granting of an adjournment for any purpose is a matter resting
within the sound discretion of the trial court (see Matter of Steven
B., 6 NY3d 888, 889 ; Matter of Anthony M., 63 NY2d 270, 283
) upon a balanced consideration of all relevant factors (see
Matter of Latrell S. [Christine K.], 80 AD3d 618 ; Matter of
Venditto v Davis, 39 AD3d 555 ; Matter of Sicurella v Embro, 31
AD3d 651 ). An appellate court will only interfere when the
trial court improvidently exercises its discretion (see Matter of
Kinara C. [Jerome C.], 89 AD3d 839 ; Matter of William Jamal W.
[Marjorie C.], 89 AD3d 502 ; Jones v Crown Nursing Home Assoc.,
Inc., 23 Misc 3d 141[A], 2009 NY Slip Op 51027[U] [App Term, 2d, 11th
& 13th Jud Dists 2009]). Here, the Civil Court did not improvidently exercise its
discretion in denying the application for an adjournment, as plaintiff conceded
in his appellate brief that he was aware that he had to bring his process server
to the traverse hearing, which he failed to do. Moreover, as the Civil Court noted,
although plaintiff had claimed to have retained an attorney and had requested an
adjournment due to his attorney's absence at the hearing, plaintiff did not present
the court with a letter of retention and no attorney had entered an appearance on
his behalf. As plaintiff had to establish proper service by a preponderance of the
evidence at the traverse hearing, which he failed to do, there is no basis to vacate
the dismissal of the complaint as to defendant Perez (see De Zego v Donald F. Bruhn,
P.C., 99 AD2d 823 , affd 67 NY2d 875 ; Skyline Agency v Coppotelli, Inc., 117 AD2d 135 ; Anton v
Amato, 101 AD2d 819 ).
Accordingly, the order of the Civil Court is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 05, 2012
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