Defendant argues that plaintiff has failed to establish a reasonable excuse for the default. Although Mr. D submitted an Affirmation of Engagement noting that he was on trial starting March 4, 2008 on ABC Realty, Mr. D’s office was advised that Supreme Court takes precedence over any Housing Court matters and was granted an adjournment until the following day in order to be present in Court and/or have a personal injury attorney duly licensed in New York to appear on his behalf.
On the following day, instead of sending an attorney admitted to practice in New York, Mr. D again sent his paralegal and an attorney admitted in Florida. Also, although the second Affirmation of Engagement advises that Mr. D was engaged in a Housing Court action in Bronx County, entitled XX Realty v Hanagan, defendant’s counsel personally reviewed the records of the Bronx County Civil Court and found no Index Number and/or case matching the case of XX Realty v H. Furthermore, a review of the records of the New York County Civil Court revealed that there were no records and/or Index Number matching a case entitled WWW v Z referenced in the plaintiff’s counsel’s motion at paragraph 6 wherein he indicates that he was engaged in a Housing Court trial on that matter.
CPLR 5015 (a)(1) permits a party to move to open a default judgment, based on excusable default and a meritorious defense, within one year of service of a copy of the judgment with written notice of its entry upon it, or, if the moving party has entered the judgment within a year of entry of the judgment. Generally, a party moving to vacate a default judgment must establish: (1) a reasonable excuse for the delay or default; and (2) that the party’s claim or defense has merit.
Defendant does not contest that plaintiff’s claim has merit. The issue before the personal injury Court is the reasonableness of plaintiff’s failure to proceed to trial on the dates scheduled.
It is uncontested that the actual engagement of counsel is a ground for an adjournment (Part 125.1) (a), which shall be proved by affidavit or affirmation filed with the Court (Part 125.1) (e)(1), and with priority given to matters involving a jury trial.
In another case the Court stated that: The court’s failure to grant adjournment to permit defense counsel to recover from medical surgery was improvident exercise of discretion in absence of any indication by plaintiff that it would have been prejudiced by delay in commencement of trial. In the absence of any indication by plaintiff, even at this late juncture, that it would have been prejudiced by a delay in the commencement of trial, we discern no reason for the failure to grant a sufficient adjournment to permit defendant’s counsel to recover from surgery. As an initial consideration, once a judicial proceeding has commenced, the judge to whom a case is assigned has exclusive jurisdiction over its conduct and may not delegate or surrender judicial authority over such issues as adjournments. Therefore, it was incumbent upon Supreme Court to make a de novo determination of the merits of defendant’s adjournment request.
Notwithstanding that plaintiff’s inadequately supported excuse that he was physically unable to attend trial, it is uncontested that defendant consented to a brief adjournment, and that Mr. D submitted two Affirmations of Engagement to the Court indicating that he was actually engaged in two different cases. Further, there is no indication in the record that defendant’s defense of this action would have been prejudiced by the granting of a brief adjournment as requested, especially in light of the fact that defense counsel consented to a brief adjournment at that time. Nor has defendant made a sufficient showing of any prejudice in the defense of this action by the granting of plaintiff’s request for relief herein. And, the instant motion was made within one-year of the default, within the statutory period.
To Be Cont…