No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law
By: Jason Tenenbaum
Failure to appear for trial allows the complaint to be dismissed WITH prejudice
New York Merchants Protective Co., Inc. v Costanza, 2010 NY Slip Op 51253(U)(App. Term 2d Dept. 2010)
“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….”
“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.”
Very interesting. I am not sure I have seen this one before.
One Response to “Failure to appear for trial allows the complaint to be dismissed WITH prejudice”
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I had one of these while with the City in Queens Supreme before Judge Goldstein. The Plaintiff sent in some per diem dude on the day of trial. He asked for an adjournment. Judge Goldstein said go pick a jury. You are here. He said: “I’ve never tried a case in my life.” The Judge said: “Well kid here’s your opportunity.” The kid balked.
By the time the attorney made it to court the case was tossed. In opp to the motion to Judge Goldstein to put in back on the trial calendar I argued the case lacked merit. The Judge agreed and the case remained tossed. There was no appeal.
The lesson and message was clear. Settle or be ready to try the case right then and there. I sat in Judge Goldstein’s Part ready to go out on anyone of 30 cases. It was impossible to prep a case.
The Judge settled many cases.