| Carroll v Nostra Realty Corp. |
| 2008 NY Slip Op 07041 [54 AD3d 623] |
| September 23, 2008 |
| Appellate Division, First Department |
| Samantha Carroll et al., Appellants, v Nostra RealtyCorporation, Respondent. (And a Third-Party Action.) |
—[*1] Thomas D. Hughes, New York (David D. Hess of counsel), for respondent.
Order, Supreme Court, New York County (Carol Robinson Edmead, J.), entered February 27,2007, which denied plaintiffs' motion to vacate the court's dismissal of the action and restore thecase to the calendar, unanimously affirmed, without costs.
It is well established that in order to obtain relief from a judgment or order on the basis of anexcusable default pursuant to CPLR 5015 (a) (1), the moving party must provide a reasonableexcuse for the failure to appear and must further demonstrate that the case or defense has merit(Goldman v Cotter, 10 AD3d289 [2004]). Assessment of the sufficiency of the proffered excuse and the adequacy ofmerit rests within the sound discretion of the court (Mediavilla v Gurman, 272 AD2d 146[2000]).
In this matter, the discovery phase of the case was delayed for a number of years. Eventually,the Supreme Court directed plaintiffs to file a note of issue and proceed to trial. In an order datedAugust 14, 2006, the parties were directed to appear for trial on September 18, 2006 and wereinstructed that "no adjournments shall be granted."
On September 18, 2006, counsel for all parties appeared before Justice Gammerman asdirected. Over the objections of defendant's counsel, and at the request of plaintiffs' counsel,Frederic M. Gold, the trial was adjourned to October 12, 2006, based on Mr. Gold's schedule.
On October 11, 2006, Mr. Gold appeared on another matter in Westchester County, wasissued a jury slip on that matter, and was instructed to return on October 16, 2006 for juryselection.
On October 12, 2006, Mr. Gold's partner, Jesse Sable, appeared in Part 40 before JusticeGammerman with an affirmation of engagement, in which Mr. Gold affirmed that he wasactually on trial in another matter. However, the court learned that Mr. Gold was not on trial onthat date, and that the other matter had been scheduled for jury selection on October 16, 2006.The court then rejected the affirmation of engagement as misleading, and dismissed this action.On appeal, plaintiffs contend that they demonstrated a reasonable excuse because their counselwas actually engaged on trial on October 12, 2006.
Section 125.1 (b) of the Rules of the Chief Administrator of the Courts (22 NYCRR)states:[*2]"[e]ngagement of counsel shall mean actualengagement on trial or in argument before any [s]tate or [f]ederal trial or appellate court, or in aproceeding conducted pursuant to rule 3405 of the CPLR and the rules promulgated thereunder."On October 12, 2006, Mr. Gold was not actually engaged on trial or in argument before anycourt, and as the record reveals, was actually preparing witnesses on another matter. Accordingly,we reject plaintiffs' contention that they demonstrated a reasonable excuse for failing to proceedto trial in this action.
While there is no express definition of the term "on trial" in the applicable rules, it iscommonly understood that a trial commences with the selection of a jury (see Draves vChua, 168 Misc 2d 314, 315 [Sup Ct, Erie County 1996]; Wright v CenturionInvestigations, 109 Misc 2d 624 [Civ Ct, Kings County 1981]; see also CPL 1.20[11]). In any event, under no reasonable understanding of that term can an attorney who isdirected to appear days later to select a jury be considered to be on trial on the day the direction isgiven. Contrary to plaintiffs' contention, an attorney is not actually engaged on trial when he isissued a jury slip. Accordingly, Mr. Gold was not actually engaged on trial in another matter onOctober 12, 2006 since he had not commenced selecting a jury in that case.
At a minimum, even if Mr. Gold believed that he was actually engaged on another matter, hewas required to appear on October 12, 2006 on this action, and, pursuant to Rules of the ChiefAdministrator of the Courts (22 NYCRR) § 125.1 (c), permit the courts to determinewhich trial should proceed first.
We also find that plaintiffs failed to demonstrate a meritorious cause of action. Specifically,the pleadings and affidavits submitted by plaintiffs were self-serving and conclusory. Further,plaintiffs failed to submit any sworn affirmations from physicians detailing their injuries andlinking them to the alleged mold in their apartment.
We have considered plaintiffs' remaining contentions and find them unavailing.Concur—Lippman, P.J., Tom, Williams, McGuire and Freedman, JJ. [See 2007NY Slip Op 34366(U).]