Henderson v. Stilwell
| Decision Date | 16 January 1986 |
| Citation | 498 N.Y.S.2d 183,116 A.D.2d 861 |
| Parties | Elaine HENDERSON et al., Appellants, v. Julie A. STILWELL et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Morris J. Eisen, P.C. (Edward P. Dunphy, of counsel), New York City for appellants.
Hickey, Sheehan & Gates, P.C. (Dennis P. Sheehan, of counsel), Binghamton, for Daniel Emilio and another, respondents.
Levene, Gouldin & Thompson (Paul B. Price, of counsel), Binghamton, for Julie A. Stilwell and another, respondents.
Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and LEVINE, JJ.
Appeal from a judgment of the Supreme Court at Special Term (Lee, Jr., J.), entered August 20, 1984 in Chenango County, which granted defendants' motions to dismiss the complaint.
Plaintiffs commenced this action in November of 1981 for personal injuries arising out of an automobile accident. In September of 1983, defendants Daniel and Carla Emilio served plaintiffs with a notice that examinations before trial (EBTs) were scheduled for October 13, 1983. Plaintiffs adjourned the EBTs two times and then, on February 16, 1984, failed to attend a court-ordered EBT. All defendants then moved for an order dismissing plaintiffs' complaint because of plaintiffs' failure to comply with the discovery order. Plaintiffs did not serve answering papers or oppose these motions, but rather, on the return date, requested an adjournment of the motions. That request was denied and the motions to dismiss were granted solely upon the basis of the papers defendants had submitted. This appeal by plaintiffs ensued.
Plaintiffs contend that Special Term abused its discretion in dismissing their complaint because (1) an adjournment should have been granted pursuant to CPLR 2214 and 2004 in order to enable them to respond to the motions to dismiss their complaint, and (2) their conduct in adjourning the EBTs and in not appearing for the court-ordered EBT was not willful and contumacious and, thus, did not justify a dismissal pursuant to CPLR 3126. We disagree with these contentions.
Regarding plaintiffs' argument that they should have been granted an adjournment in order to respond to defendants' motion papers, CPLR 2214 and 2004 mandate that a delinquent party offer a valid excuse for the delay before being allowed to submit late papers (Wallin v. Wallin, 34 A.D.2d 870, 871, 310 N.Y.S.2d 788). Plaintiffs made no such showing at Special Term, but rather merely requested an adjournment. Moreover, even if we were to consider the excuse made for the first time on appeal, i.e., that the attorney in charge of this case was on vacation when the motions were noticed, this does not satisfy the requirements of the CPLR that good cause be shown for the delay (Floria v. Cook, 59 A.D.2d 771, 398 N.Y.S.2d 725; Glens Falls Ins. Co. v. Russo, 83 Misc.2d 474, 476, 372 N.Y.S.2d 944). Additionally, since plaintiffs did not submit an affidavit of merits, they are also precluded from relying upon law office failure pursuant to CPLR 2005 as an excuse (see, Smith v. Lefrak Organization, 60 N.Y.2d 828, 830, 469 N.Y.S.2d 693, 457 N.E.2d 799).
We are likewise unpersuaded by plaintiffs' assertion that Special Term abused its...
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