In this trip and fall personal injury action, plaintiff moves for an order vacating the default judgment dismissing his Complaint for failure to prosecute and placing this matter back on the trial calendar.
Plaintiff claims that on August 28, 2003, he tripped and fell on an defective protruding lip found on the door saddle while entering the premises located at xxx West 59th Street (the “premises”) owned by defendant.
This action was scheduled for jury selection in Part 40 before Judicial Hearing Officer (“JHO”) G on September 25, 2007, but was adjourned to December 4, 2007 for discovery to be held concerning additional injury to and surgery of plaintiff’s right knee. On December 4, 2007, jury selection was further adjourned to a final trial date of March 3, 2008.
According to plaintiff, on February 29, 2008, a few days before the trial selection date, Mrs. H, a paralegal of trial counsel, Mr. D advised the Court that Mr. D was engaged in a different trial before which he was not permitted to adjourn and was required to complete over the next few days. Plaintiff contends that he was unable to participate in the trial at that time due to medical/health reasons. Plaintiff claims that the Court advised Ms. H to submit an Affirmation of Engagement on March 3, 2008 in order to obtain an adjournment. Further, plaintiff claims that defense counsel consented to an adjournment.
On March 3, 2008, Ms. H went to Part 40 and submitted an Affirmation of Engagement concerning a trial entitled ABC Realty v J and S, in Civil Court, New York County. The Affirmation of Engagement requested an adjournment to the last week in March, indicated that defense counsel would consent to a brief adjournment. The case was adjourned to the following day, March 4, 2008 and the Court advised Ms. H that the case was marked “final” and that Mr. D must appear to avoid the case being dismissed.
Mr. D failed to appear on March 4, 2008. However, Ms. H appeared again, this time with counsel admitted only in Florida. According to plaintiff, Ms. H submitted another Affirmation of Engagement stating that (1) Mr. D was actually engaged in a matter entitled XX Realty v H “Part 52” in Civil Court, Bronx County (2) plaintiff underwent a second surgery, was in pain and unable to attend court, and (3) defense counsel “would consent to a brief adjournment.” Although Mr. D was also actually engaged on March 4, 2008 in another matter entitled WWW v Z, Mr. D retained counsel to handle such matter. However, JHO G rejected the Affirmation of Engagement, and dismissed the case with prejudice.
Defendant contends that JHO G’s dismissal was an improvident exercise of discretion. Defendant argues that the First Department has held that a court’s failure to grant an adjournment to permit defense counsel to recover from surgery was an improvident exercise of discretion in the absence of any indication by defendant that it would have been prejudiced by a slight delay in the start of trial. JHO G’s dismissal was unwarranted because (1) opposing counsel consented to the adjournment, (2) Mr. D was actually engaged, (3) plaintiff was ill and medically unable to participate in trial, (4) there was an incomplete exchange of doctors’ reports and defendant’s medical doctor report after plaintiff s second surgery, and (5) there was no prejudice to defendant if a short adjournment was granted.
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