New York Merchants Protective Co., Inc. v Costanza

[*1] New York Merchants Protective Co., Inc. v Costanza 2010 NY Slip Op 51253(U) [28 Misc 3d 130(A)] Decided on July 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1145 Q C.

New York Merchants Protective Co., Inc., Appellant,

against

Michael Costanza and Victoria Costanza, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered December 11, 2008. The order denied plaintiff's motion to vacate a judgment dismissing the complaint due to plaintiff's failure to proceed to trial, and to restore the case to the calendar.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this action to recover damages for breach of contract. Defendants appeared and answered, and the matter was adjourned to June 2007. The case was then adjourned and marked final for trial on October 24, 2007. Thereafter, the complaint was dismissed with prejudice, and a judgment was entered in defendant's favor in the amount of $60 on July 30, 2008. Plaintiff subsequently moved to vacate the judgment and to restore the case to the calendar. In an affirmation in support of the motion, plaintiff's attorney stated that all parties, including plaintiff's witness who was also plaintiff's vice president, were in court on October 24, 2007. However, as no judges were available, the matter was adjourned to April 24, 2008 and again marked final. Four days before the April trial date, plaintiff's witness informed plaintiff's attorney that he would be unavailable for trial because he had to attend a mandatory meeting at work on the scheduled date. When plaintiff was not ready to proceed to trial on the April trial date, and defendants refused to consent to an adjournment, the Civil Court dismissed the complaint with prejudice. By order entered December 11, 2008, the Civil Court denied plaintiff's motion. The instant appeal by plaintiff ensued.

A request for an adjournment is addressed to the sound discretion of the court, and its determination will not be disturbed absent an improvident exercise of discretion (see Davidson v [*2]Davidson, 54 AD3d 988 [2008]; Mirzoeff v Nagar, 52 AD3d 789 [2008]). Under the facts presented herein, the Civil Court did not improvidently exercise its discretion in denying plaintiff's request for an adjournment and, therefore, properly dismissed the complaint with prejudice. Accordingly, the order is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 16, 2010