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Walker v. City of New York

Supreme Court of New York, First Department

June 20, 2013

Ellen Walker, Plaintiff-Appellant,
v.
The City of New York, et al., Defendants-Respondents, Parkdale Realty Company, et al., Defendants.

Alexander J. Wulwick, New York, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for respondents.

Mazzarelli, J.P., Renwick, Manzanet-Daniels, Gische, Clark, JJ.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered June 19, 2012, which, in this action for personal injuries, denied plaintiff's 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 unavailable, 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, 58 A.D.3d 530, 532 [1st Dept 2009]).


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