Ertzel v. Hotel Wentworth — 309 A.D.2d 652

Majority

p. 652

Shalom Ertzel, Appellant, v Hotel Wentworth, Respondent.

[765 NYS2d 850]

Order, Supreme Court, New York

p. 653

County (Louise Gruner Gans, J.), entered July 18, 2002, which denied plaintiffs motion to vacate the dismissal of the action and granted renewal and, upon renewal, denied further adjournment of the action, unanimously affirmed, with costs.

Plaintiff, a foreign national, alleges that he was robbed of money and diamonds while a guest at defendant hotel. Supreme Court adjourned trial on numerous occasions based on undocumented representations as to plaintiffs ill health when, in reality, plaintiff had been incarcerated, abroad, for a period of 12 months upon his conviction for issuing bad checks. Under these circumstances, denial of plaintiffs motion to vacate the dismissal of his action was a provident exercise of discretion. The deception employed to obtain adjournments does not constitute a reasonable excuse for plaintiffs default in appearance (Siskin v 221 Sullivan St. Realty Corp., 180 AD2d 544 [1992], lv dismissed 80 NY2d 826 [1992]; Padilla v DaSilva, 166 AD2d 211 [1990]). Nor did plaintiff offer any evidence to establish the merit of his case (CPLR 5015 [a] [1]; see Crespo v A.D.A. Mgt., 292 AD2d 5 , 9 [2002]; Mediavilla v Gurman, 272 AD2d 146 , 148 [2000]). Concur — Saxe, J.P., Rosenberger, Friedman and Marlow, JJ.

Cases cited

Siskin v. 221 Sullivan Street Realty Corp. 180 AD2d 544 N.Y. App. Div. 1992-02-20 p. 653
Crespo v. A.D.A. Management 292 AD2d 5 N.Y. App. Div. 2002-03-12 at 9 p. 653