J. C. S. Design Associates, Inc. v. Vinnik

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before KUPFERMAN; All concur except KUPFERMAN
• Citation: J. C. S. Design Associates, Inc. v. Vinnik, 445 N.Y.S.2d 717, 85 A.D.2d 572 (N.Y. App. Div. 1981)
• Decision Date: 22 December 1981
• Parties: J. C. S. DESIGN ASSOCIATES, INC., Plaintiff-Appellant, v. Daniel M. VINNIK, Defendant-Respondent.

Page 717

445 N.Y.S.2d 717

85 A.D.2d 572

J. C. S. DESIGN ASSOCIATES, INC., Plaintiff-Appellant, v. Daniel M. VINNIK, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Dec. 22, 1981.

M. Kail, New York City, for plaintiff-appellant.

M. L. Furman, New York City, for defendant-respondent.

Before KUPFERMAN, J. P., and BIRNS, SANDLER and FEIN, JJ.

MEMORANDUM DECISION.

Order, Appellate Term, Supreme Court, New York County, entered January 6, 1981, which reversed an order of the Civil Court, New York County, entered August 11, 1980, which had denied defendant's motion to vacate a default judgment and to restore the action to the trial calendar, affirmed, without costs.

At the time the conference judge in the Civil Court entered a default against the defendant, the judge had ample basis for his conclusion that the defendant's application for an adjournment based on his supposed illness represented an effort to impose upon the court.

The application took the form of a brief note by defendant to his counsel devoid of any details as to the nature of his illness and its likely duration, and was unaccompanied by any medical certificate. The judge's own properly conducted inquiries, coupled with other information presented by plaintiff's counsel, made it clear that defendant was not too ill to go to his law office and to conduct his normal business. Under the circumstances, including the facts that a jury had been selected to try the case some days before, the parties had been waiting for a trial part to open, and the court had previously denied an application for an adjournment by defendant's counsel on the ground of a previous commitment in another court, the judge had every right to feel indignant at this apparent effort to deceive him.

The correctness of the judge's assessment was convincingly confirmed in the papers thereafter submitted on the motion to vacate the default. In response to detailed affidavits submitted by the plaintiff, clearly establishing that on the day of his supposed illness defendant was attending to business as usual, the defendant submitted a reply affidavit that was evasive on the essential questions raised and flatly contradicted the original application with regard to when he had become ill. The actions of the defendant, a lawyer with particular responsibility to deal fairly and courteously with the court, merit severe criticism.

Having concluded that the application for an adjournment was not made in...