Community Network Serv., Inc. v Verizon N.Y., Inc. (2008 NY Slip Op 01072)

Community Network Serv., Inc. v Verizon N.Y., Inc.

2008 NY Slip Op 01072 [48 AD3d 249]

February 7, 2008

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 16, 2008

Community Network Service, Inc., Appellant,
v
Verizon New York, Inc., Respondent.

—[*1] Michael T. Stapleton, New York City, for appellant.

Ledy-Gurren Bass & Siff, LLP, New York City (Nancy Ledy-Gurren of counsel), for respondent.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered September 26, 2007, dismissing plaintiff's action with prejudice for failure to prosecute, unanimously affirmed, without costs.

Dismissal of the action for failure to prosecute was proper where, on the scheduled date of trial, plaintiff's counsel refused to select a jury (22 NYCRR 202.27 [b]; and see Campos v New York City Health & Hosps. Corp., 307 AD2d 785 [2003]). Plaintiff's remedy lies in a motion to vacate in which it must "make a showing of a meritorious action and a reasonable excuse for [its] default" (id. at 785). Concur—Mazzarelli, J.P., Saxe, Friedman, Catterson and Acosta, JJ.