Warner v Orange County Regional Med. Ctr.,

___ AD3d ___, 2015 NY Slip Op 02113 [2d Dept., 2015]

It is a sad fact of life in the courts that no attorney can be in two places at once. (A sub-atomic particle can be in two places at once, but only until someone sees it. Then the wave function collapses and it’s stuck. Or so they tell me.)

Here, a week before the scheduled trial date, plaintiff’s counsel notified defendant’s counsel by fax that he was already on trial, that the trial was expected to continue for another three weeks, and requesting an adjournment. Defense counsel opposed the adjournment, and sent a letter to the trial court including the plaintiff’s fax. The court refused the adjournment in a written order, which specified that the plaintiff’s failure to appear would result in dismissal and refusing in advance to accept any affirmation of actual engagement.

On the trial date, substitute counsel appeared, with an affirmation of actual engagement, and stated that the plaintiff was not ready to proceed, whereupon the court dismissed the action. Read More