| Frey v Chiou |
| 2012 NY Slip Op 02631 [94 AD3d 810] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Jean Marie Frey et al., Appellants, v Ming C. Chiou et al.,Respondents, et al., Defendant. |
—[*1] Meiselman, Denlea, Packman, Carton & Eberez P.C, White Plains, N.Y. (Donald J.Scialabba of counsel), for respondents Ming C. Chiou and Warwick Anesthesia and PainManagement. Steinberg, Symer & Platt, LLP, Poughkeepsie, N.Y. (Ellen Fischer Bopp and Carol C. Polesof counsel), for respondent St. Anthony's Community Hospital.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Orange County (McGuirk, J.), dated April 18, 2011, which denied theirmotion (a), in effect, to vacate so much of a judgment of the same court entered November 15,2010, as, upon the denial of the plaintiffs' application for an adjournment of trial and upon anorder of the same court dated May 7, 2010, granting the separate applications of the defendantsMing C. Chiou and Warwick Anesthesia and Pain Management, and the defendant St. Anthony'sCommunity Hospital, pursuant to 22 NYCRR 202.27 (b), inter alia, to dismiss the complaintinsofar as asserted against each of them upon the plaintiffs' failure to proceed with trial, was infavor of those defendants and against the plaintiffs dismissing the complaint insofar as assertedagainst those defendants, and (b) to restore the action to the trial calendar.
Ordered that the order is affirmed, with one bill of costs awarded to the respondentsappearing separately and filing separate briefs.
The plaintiffs moved, in effect, to vacate so much of a judgment entered November 15, 2010,as dismissed the complaint insofar as asserted against the defendants Ming C. Chiou, WarwickAnesthesia and Pain Management, and St. Anthony's Community Hospital (hereinafter thedefendants), and to restore the action to the trial calendar. The complaint was dismissed againstthese defendants pursuant to 22 NYCRR 202.27 (b) due to the plaintiffs' failure to proceed withtrial. The plaintiffs had requested a three-month adjournment of trial, but that application hadbeen denied.
An action dismissed pursuant to 22 NYCRR 202.27 (b) may be restored if the plaintiffdemonstrates both a reasonable excuse for the default and a potentially meritorious cause ofaction (see Santiago v Santana, 54AD3d 929, 930 [2008]). Here, the plaintiffs failed to demonstrate a reasonable excuse fortheir failure to proceed with trial (seeSchmitt v Jeyalingam, 71 AD3d 757 [2010]; Santiago v Santana, 54 AD3d at930; Frangione v Daniels, 44 AD3d708 [2007]; Psomatithis vTransoceanic Cable [*2]Ship Co., Inc., 39 AD3d 837,838 [2007]). The plaintiffs had notice of the scheduled trial date more than 10 months before trialand they failed to demonstrate that the need for a three-month adjournment was not due to theirlack of due diligence (see Matter ofPaulino v Camacho, 36 AD3d 821, 822 [2007]; Colon v Bailey, 26 AD3d 454, 455 [2006]; Herbert v EdwardsSuper Food Stores-Finast Supermarkets, 253 AD2d 789 [1998]). The plaintiffs also failed todemonstrate a potentially meritorious cause of action. Accordingly, the Supreme Courtprovidently exercised its discretion in denying the plaintiffs' motion, in effect, to vacate so muchof the judgment as dismissed the complaint insofar as asserted against the defendants and torestore the action to the trial calendar. Rivera, J.P., Eng, Chambers, Sgroi and Miller, JJ., concur.