ACCIDENT PLAINTIFF'S CASE DISMISSED FOR MULTIPLE FAILURES TO ATTEND DEPOSITIONS

Court: Supreme Court, Appellate Division, First Department, New York

Case: Segundo Jesus Tenamaza v. Knickerbocker Construction II, LLC

Date: June 19, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury attorney)

**************************************************

RELATED POSTS:

DEFENSE SUMMARY JUDGMENT MOTION IN HORSEBACK RIDING ACCIDENT CASE GRANTED DESPITE TWO IGNORED NOTICES TO ADMIT--WHICH CAN'T COVER ISSUES THAT NEED A TRIAL

ACCIDENT VICTIM'S EXPERT PRECLUDED FROM TRIAL FOR LATE DISCLOSURE, BUT UNIFIED TRIAL GRANTED BECAUSE OF DISPUTE AS TO WHICH PART OF HIS BODY DEFENDANT'S CAR STRUCK

NO DISCLOSURE (DISCOVERY) ALLLOWED ON NEGLIGENT HIRING CLAIM WHERE BUS DRIVER WORKING AT TIME OF ACCIDENT

**************************************************

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered July 27, 2011, which, in this personal injury action, granted plaintiff's motion to vacate an order, same court and Justice, entered January 25, 2011, granting defendants' motion and third‑party defendant MC & O Contracting, Inc.'s cross motion to strike the complaint pursuant to CPLR 3126, unanimously reversed, on the law, without costs, and plaintiff's motion denied. The Clerk is directed to enter judgment dismissing plaintiff's complaint.

Although "there is a strong public policy favoring resolution of cases on the merits" (Ferguson v. Hess Corp., 89 A.D.3d 599, 599, 932 N.Y.S.2d 904 [2011]), the excuse plaintiff offered for his failure to attend multiple depositions and to keep in contact with his counsel was unreasonable. The affidavit plaintiff submitted in support of his motion fails to mention, let alone explain, how he was unaware of the deposition scheduled for June 23, 2010, when he executed medical authorizations a mere 20 days earlier. Nor did plaintiff's counsel demonstrate that they undertook reasonable efforts to locate plaintiff. As a "plaintiff's failure to maintain contact with his attorney and to keep himself apprised of the progress of his lawsuit [does not] constitute a reasonable excuse for [a] default," plaintiff's motion should have been denied (Sheikh v. New York City Tr. Auth., 258 A.D.2d 347, 685 N.Y.S.2d 223 [1999]).

Plaintiff's arguments pertaining to defendants' motion and MC & O's cross motion to strike the complaint are misplaced, as plaintiff never appealed from the order granting those motions (see Pergamon Press v. Tietze, 81 A.D.2d 831, 438 N.Y.S.2d 831 [1981], lv. dismissed 54 N.Y.2d 605, 443 N.Y.S.2d 1028, 427 N.E.2d 513 [1981]). In any event, the arguments are unavailing.

Categories