Wahid v. Pour

Nov 22, 2011
Versions:89 A.D.3d 1015
933 N.Y.S.2d 559
933 N.Y.2d 559

Under the circumstances of this case, the Supreme Court properly dismissed the complaint insofar as asserted against the defendants Fred Khalili and Kings Dentistry upon the plaintiffs failure to appear at a scheduled conference (see 22 NYCRR 202.27 [b]; Syed v Fedor, 296 AD2d 399 [2002]). Contrary to the plaintiffs contention, his counsel’s purported “Affirmation of Engagement” (hereinafter the affirmation) did not excuse his counsel’s failure to appear at the scheduled conference. The affirmation did not comply with 22 NYCRR 125.1 (e) (1), as the record did not indicate that the affirmation was filed with the Supreme Court together with proof of service on all parties (see 22 NYCRR 125.1 [e] [1]; Matter of Sutton v Mitrany, 30 AD3d 678, 679 [2006]). Furthermore, the affirmation failed to comply with 22 NYCRR 125.1 (e) (1) because it did not indicate the general nature of the action in which counsel was allegedly engaged, and did not include the probable date and time of the conclusion of the engagement (see 22 NYCRR 125.1 [e] [1] [ii], [v]; Matter of Sutton v Mitrany, 30 AD3d at 679).

The plaintiffs remaining contentions are either without merit or improperly raised for the first time on appeal. Florio, J.P., Hall, Austin and Cohen, JJ., concur.