Baba v Food Emporium

[*1] Baba v Food Emporium 2009 NY Slip Op 50782(U) [23 Misc 3d 134(A)] Decided on April 23, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 23, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, J.
570254/08

Susan Baba, Plaintiff-Appellant,

against

Food Emporium, Defendant-Respondent.

Plaintiff appeals from (1) an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered October 25, 2006, which denied her motion to vacate prior court orders; (2) an order (same court and Judge), entered November 2, 2006, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3126; and (3) an order of the same court (Geoffrey D. Wright, J.), entered May 16, 2007, which denied her motion to "disqualify" a Civil Court Judge.

Per Curiam.

Orders (Joan M. Kenney, J.), entered October 25, 2006 and November 2, 2006, affirmed, without costs. Order Geoffrey D. Wright, J.), entered May 16, 2007, affirmed, without costs, for the reasons stated by Geoffrey D. Wright, J. at Civil Court.

Dismissal of the complaint was a proper exercise of judicial discretion in light of plaintiff's longstanding pattern of noncompliance with court orders and discovery demands (see CPLR 3126). Plaintiff's failure to offer a reasonable excuse for her noncompliance gives rise to an inference of willful and contumacious conduct (see Goldstein v CIBC World Mkts. Corp., 30 AD3d 217 [2006]). Plaintiff was properly denied relief under CPLR 5015(a)(2) and (3), in the absence of any showing that her "new" evidence would likely have resulted in a different outcome or that the order vacating defendant's default was the result of a fraud upon the court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 23, 2009