Bradford v Joseph

[*1] Bradford v Joseph 2012 NY Slip Op 50240(U) Decided on February 9, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2010-2122 K C. -x

Stephanie Bradford, Appellant,

against

Colin Joseph and Curtis Cox, Respondents. -x

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered January 14, 2010. The order denied plaintiff's motion to vacate an order dismissing the complaint and to restore the action to the trial calendar.

ORDERED that the order is reversed, without costs, and plaintiff's motion to vacate the order dismissing the complaint and to restore the action to the trial calendar is granted.

In this action to recover for, among other things, breach of contract, plaintiff's attorney's refusal to proceed to trial upon the Civil Court's denial of his application for
an adjournment resulted in the complaint's dismissal with prejudice. Shortly thereafter, plaintiff moved to vacate the order dismissing the complaint and to restore the action to the trial calendar. The Civil Court denied plaintiff's motion.

An application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; Beizer v Bloom, 17 Misc 3d 129[A], 2007 NY Slip Op 51967[U] [App Term, 9th & 10th Jud Dists 2007]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]); however, the court's determination will be disturbed upon an improvident exercise of discretion (cf. Wolosin v Campo, 265 AD2d 332 [1998]; Beizer v Bloom, 17 Misc 3d 29[A], 2007 NY Slip [*2]Op 51967[U]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). Under the particular circumstances presented, where the grounds for the requested adjournment were reasonable, there is no indication in the record that the adjournment was made for the purposes of delay, and plaintiff did not seek an extended adjournment, we find that the Civil Court improvidently exercised its discretion in refusing to grant the adjournment (see Lila v Bata, 33 AD3d 875 [2006]; Bouima v Dacomi, Inc., 28 Misc 3d 65 [App Term, 2d, 11th & 13th Jud Dists 2010]). In light of the foregoing, we do not reach plaintiff's remaining contentions. Accordingly, the order is reversed and plaintiff's motion to vacate the order dismissing the complaint and to restore the action to the trial calendar is granted.

Golia and Rios, JJ., concur.

Weston, J.P., dissents in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
-x
PRESENT : WESTON, J.P., GOLIA and RIOS, JJ.
-x
STEPHANIE BRADFORD,

Appellant,

-against-

NO. 2010-2122 K C

DECIDED
COLIN JOSEPH and CURTIS COX,

Respondents.
-x

Weston, J.P., dissents and votes to affirm the order in the following memorandum:

In my view, the Civil Court properly exercised its discretion, gave a well reasoned and thorough explanation to support its finding and acted completely within the scope of its powers (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [b] [2]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc 3d 32 [App Term, 2d, 11th and 13th Jud Dists 2009]). "The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court" (Matter of Anthony M., 63 NY2d 270, 283 [1984]). Nothing in this record demonstrates an improvident exercise of discretion, and the court's determination should not be disturbed absent an improvident exercise of that discretion (see New York Merchants Protective Co., Inc., v Costanza, 28 Misc 3d 130[A], 2010 NY Slip Op 51253[U] [App Term, 2d, 11th and 13th Jud Dists 2010]). Nor should an appellate court substitute its judgment for the trial court ,which had a better opportunity to assess and evaluate the situation.

As a condition to granting a prior adjournment, the Civil Court informed the parties that there would be no further adjournments. The parties were directed to be ready to proceed to trial on the next date, and the case was marked final for trial. Notwithstanding this clear instruction, plaintiff failed to appear. The vague and unsubstantiated excuse that plaintiff had felt ill the prior [*4]weekend was insufficient[FN1] (see Zeltser v Sacerdote, 24 AD3d 541 [2005]). Without more, the court acted completely within its discretion in dismissing the case.

The majority's assertion that plaintiff was not seeking an extended delay of the trial is unsupported by the record. There is nothing in the record indicating one way or another as to how long of a delay plaintiff sought. What the record does support is that, after hearing the application for the adjournment, the trial court found the excuse to be unreasonable. Where a trial court has not abused its discretion, we should not interfere with the inherent power of the court's decision-making authority. To do so undermines t0he court and oversteps the boundaries of appellate review (see Matter of Paulino v Camacho, 36 AD3d 821 [2007]; Nieves v Tomonska, 306 AD2d 332 [2003]; see generally Ito v Dryvit Sys., 5 AD3d 735 [2004]). Accordingly, the order should be affirmed.
Decision Date: February 09, 2012 Footnotes

Footnote 1:It should be noted that the trial date was on a Tuesday and there is no evidence plaintiff sought any medical attention. Under these circumstances, general malaise is not a reasonable excuse for the failure to appear.