Cox v. Marshall, 2015–07557
| Decision Date | 30 May 2018 |
| Docket Number | 2015–07557,Index No. 6247/12 |
| Citation | 78 N.Y.S.3d 212,161 A.D.3d 1140 |
| Parties | Raymond Bruce COX, appellant, v. Bentley MARSHALL, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Richard L. Sullivan, Buffalo, NY, for appellant.
Lawrence Heisler, Brooklyn, N.Y. (Anna J. Ervolina of counsel), for respondents.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 24, 2015. The order denied the plaintiff's motion to vacate his default in appearing at trial.
ORDERED that the order is affirmed, with costs.
On October 6, 2011, the plaintiff allegedly was injured when, while riding a bicycle in Brooklyn, he was struck by a bus owned by the defendant New York City Transit Authority and operated by the defendant Bentley Marshall. On July 30, 2014, following discovery and one adjournment of the trial, the plaintiff's attorney informed the plaintiff that jury selection would take place on November 6, 2014, and a trial would take place thereafter. On September 11, 2014, the plaintiff, a jazz musician, agreed to perform on a concert tour outside the State of New York. The tour was scheduled to begin on November 1, 2014, and end on November 29, 2014, when the plaintiff would return to New York. Although the plaintiff discussed the case with his attorney several times between September 11, 2014, when he booked the concert tour, and November 6, 2014, the date scheduled for jury selection, he only informed counsel of the tour on the day of jury selection when, during a telephone conversation, he mentioned that he was in Mexico.
The plaintiff's attorney instructed the plaintiff to return to New York for trial. Moreover, the plaintiff's attorney made several requests for an adjournment, but the Supreme Court denied them. A jury was selected on November 6, 2014, and the court gave the plaintiff one week to return for trial on November 13, 2014. Despite being afforded this additional week, the plaintiff failed to appear on November 13, 2014, and remained on tour. Based on the plaintiff's failure to appear for trial, the court directed that the action be dismissed.
Thereafter, the plaintiff moved to vacate his default in appearing at trial, arguing that he had a work commitment outside the country and that he mistakenly assumed that an adjournment would be granted. The Supreme Court denied the plaintiff's motion. The plaintiff appeals, arguing that his default should be vacated pursuant to CPLR 5015(a)(1) or, alternatively, that the default should be vacated in the interests of justice.
In moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing for a scheduled conference or trial, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see Stein v. Davidow, Davidow, Siegel & Stern, LLP, 157 A.D.3d 741, 742, 68 N.Y.S.3d 497 ; Mazzio v. Jennings, 128 A.D.3d 1032, 8 N.Y.S.3d 596 ; see also Vardaros v. Zapas, 105 A.D.3d 1037, 963 N.Y.S.2d 408 ). A determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court (see OneWest Bank, FSB v. Singer, 153 A.D.3d 714, 715, 59 N.Y.S.3d 480 ). Contrary to the plaintiff's contentions, he did not demonstrate a reasonable excuse for his failure to appear at trial. The plaintiff's failure to advise his attorney of the concert tour, despite their communication about other aspects of the case prior to the tour, and despite the plaintiff's knowledge that a jury would be selected on November 6, 2014, amounts to a lack of diligence and communication on the plaintiff's part (see Park Lane N. Owners, Inc. v. Gengo, 151 A.D.3d 874, 58 N.Y.S.3d 81 ; Sheikh v. New York City Tr. Auth., 258 A.D.2d 347, 685 N.Y.S.2d 223 ; Dudley v. Steese, 228 A.D.2d 931, 644 N.Y.S.2d 824 ; Martinez v. Otis El. Co., 213 A.D.2d 523, 624 N.Y.S.2d 43 ). Moreover, the plaintiff's assumption that the trial would be adjourned until December is not supported by a factual basis in the record. Under these circumstances, the plaintiff failed to demonstrate a reasonable excuse for his failure to appear at trial (see Park Lane N....
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