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Ceballos v. NLW Realty Corp.11/27/2002
This opinion is uncorrected and will not be published in the Official Reports.
Dismissal and Non-suit--Restoring Action to Calendar
(*1)
Calendar # 02-293/294
(*2)
Plaintiff appeals from, inter alia, an order of the Civil Court, New York County dated October 30, 2001 (Carol Edmead, J.) granting defendant's motion to vacate a prior order entered March 14, 2001 which restored the action to the trial calendar and vacated the prior order of dismissal.
Order dated October 30, 2001 (Carol Edmead, J.) affirmed, with $10 costs.
In this personal injury action, the record indicates that plaintiff's default in proceeding to trial on August 20, 2000 and her subsequent nonappearance on the adjourned August 23, 2000 trial date were willful. Plaintiff's then counsel, who had appeared in court, stated on the record that he was informed by plaintiff that she "would not appear o one could force her into the courtroom." Plaintiff herself offered no reasonable excuse for her trial default. Further, it does not appear that plaintiff possesses a facially meritorious claim against defendant landlord, who had been divested of possession as a result of a receivership at the time of the alleged 1994 apartment accident (see, Brady v 5644 Avenue U Assocs., 291 AD2d 523, 524).
Since plaintiff failed to give defendant notice of her motion to restore the case to the trial calendar and vacate the prior order of dismissal, the court lacked jurisdiction to entertain that motion (Adames v New York City Tr. Auth., 126 AD2d 462; (*3)Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928). Accordingly, Civil Court properly vacated the order of March 14, 2001 and reinstated the dismissal of the action with prejudice.
This constitutes the decision and order of the court.
I concur.
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