David v Shaji

[*1] David v Shaji 2010 NY Slip Op 50590(U) [27 Misc 3d 128(A)] Decided on March 31, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., TANENBAUM and IANNACCI, JJ
2009-473 W C.

Talakkottur R. David, Appellant,

against

Laila Shaji, Respondent.

Appeal from an order of the City Court of New Rochelle, Westchester County (John P. Colangelo, J.), dated October 29, 2008. The order, insofar as appealed from, denied plaintiff's motion to open his default in appearing at trial and to restore the case to the trial calendar.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this breach of contract action, plaintiff appeals from so much of an order of the City Court as denied his motion to open his default in appearing at trial and to restore the matter to the trial calendar.

The determination of what constitutes a reasonable excuse sufficient to open a default lies within the sound discretion of the trial court (see e.g. Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). In this instance, plaintiff's own statements, as well as defendant's records and the records of the City Court, all contradict plaintiff's claimed excuses for his failure to appear at trial. Contrary to plaintiff's claim, he was properly notified of, aware of, and present at, the January 10, 2008 scheduling conference which set the trial date. Given the lack of any credible excuse offered by plaintiff for his failure to appear at trial, the City Court did not improvidently exercise its discretion in refusing to open plaintiff's default.

In light of our determination, we reach no other issue.

LaCava, J.P., Tanenbaum and Iannacci, JJ., concur.
Decision Date: March 31, 2010