Opinion
2009-1145 Q C.
Decided July 16, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered December 11, 2008. The order denied plaintiff's motion to vacate a judgment dismissing the complaint due to plaintiff's failure to proceed to trial, and to restore the case to the calendar.
ORDERED that the order is affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Plaintiff commenced this action to recover damages for breach of contract. Defendants appeared and answered, and the matter was adjourned to June 2007. The case was then adjourned and marked final for trial on October 24, 2007. Thereafter, the complaint was dismissed with prejudice, and a judgment was entered in defendant's favor in the amount of $60 on July 30, 2008. Plaintiff subsequently moved to vacate the judgment and to restore the case to the calendar. In an affirmation in support of the motion, plaintiff's attorney stated that all parties, including plaintiff's witness who was also plaintiff's vice president, were in court on October 24, 2007. However, as no judges were available, the matter was adjourned to April 24, 2008 and again marked final. Four days before the April trial date, plaintiff's witness informed plaintiff's attorney that he would be unavailable for trial because he had to attend a mandatory meeting at work on the scheduled date. When plaintiff was not ready to proceed to trial on the April trial date, and defendants refused to consent to an adjournment, the Civil Court dismissed the complaint with prejudice. By order entered December 11, 2008, the Civil Court denied plaintiff's motion. The instant appeal by plaintiff ensued.
A request for an adjournment is addressed to the sound discretion of the court, and its determination will not be disturbed absent an improvident exercise of discretion ( see Davidson v Davidson, 54 AD3d 988; Mirzoeff v Nagar, 52 AD3d 789). Under the facts presented herein, the Civil Court did not improvidently exercise its discretion in denying plaintiff's request for an adjournment and, therefore, properly dismissed the complaint with prejudice. Accordingly, the order is affirmed.
Pesce, P.J., Golia and Rios, JJ., concur.