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Motion for Order Setting Aside Default Granted by New York Appellate Court

The cases to which defendant cites do not warrant a different result (cf. Diamond v Diamond Diamonte, 57 AD3d 826, 869 NYS2d 609 [2d Dept 2007] [plaintiff failed to appear ready to proceed for two successive court dates during the trial-in-chief, when she was scheduled to undergo cross examination; on the second occasion, which was marked “final” by the court, she was outside of the courthouse in her car and refused to enter the building. Although the court directed her husband, the plaintiff , to bring her into the courtroom, and afforded them adequate time to appear in the courtroom, both of the plaintiff’s then failed to appear before the Supreme Court ready to proceed, which conduct evidenced an intent to abandon the action]; Fuchs v Midali America Corp., 260 AD2d 318, 689 NYS2d 80 [1st Dept 1999] [defendants failed to show a reasonable excuse for their failure to appear on two scheduled trial dates; they failed to explain why some indication of their scheduling needs could not have been conveyed to the court]; Teachers Insurance v Code Beta Group, Inc., 204 AD2d 193, 612 NYS2d 124 [1st Dept 1994] [where defendants’ attorney was aware of complications from eye surgery more than a month before trial was set to begin on February 24, 1992, but failed to arrange for substitute counsel as the court had directed two months before, attorney’s failure to seek substitution of other injury counsel was not excusable given these circumstances]).

Here, Mr. D communicated to the Court, with consent from the defendant on both scheduled dates, that he was actually engaged in two other cases. The XX matter in Part 52 was adjourned less than two weeks prior to March 4th for a traverse hearing. And, defendant’s claim, without documentary support, that the records he reviewed failed to show that Mr. D was actually engaged, fail to overcome the submissions by plaintiff indicating that Mr. D was scheduled to appear in ABC Realty in New York County, and XX in Bronx County on the dates this matter was scheduled for jury selection. Further, the instant matter was scheduled for jury selection; a jury trial had not yet been commenced.

Based on the foregoing, it is hereby ORDERED that the motion by plaintiff for an order vacating the default judgment dismissing his Complaint for failure to prosecute and placing this matter back on the trial calendar is granted, and this matter is restored to the active calendar; and it is further ORDERED that the parties shall appear in Part 40 for trial on July 13, 2009, no further adjournments.

It is further ORDERED plaintiff’s counsel’s failure to appear and proceed to trial on July 13, 2009 shall result in dismissal of this action, with prejudice. Plaintiff’s counsel is provided sufficient time to consult and modify his calendar and/or obtain substitute counsel if he is unavailable on July 13, 2009 for the injury trial of this matter.

In all types of claims for damages, the law has placed a limitation on the injured party to prosecute his or her claim. It is always a wise move to consult lawyers who are expert in situations like in the case at bar to immediately vindicate you of your legal remedies.

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