For Plaintiff: Angel Rodriguez, Jr., PLLC, 833 Kent Ave., Brooklyn, NY 11205

For Defendants: Cheven, Keeley & Hatzis, by Francis J. Leone, Esq., 40 Wall Street, 15th floor, NY, NY 10005

Charles J. Markey, J.

The motion by the plaintiff to vacate the order of dismissal is DENIED.

The Court is troubled by the failure of plaintiff's counsel to pursue this action for the past four years, especially after the taking of examinations before trial in May, 2006, pursuant to the undersigned's so-ordered stipulation. On the issue of medical documentation, neither party has disclosed to the Court what contemporaneous records exist to document the plaintiff's injuries.

The Court further notes that the plaintiff's counsel failed in his moving affirmation to set forth the reasonable excuse for the failure to press this case for trial or to vacate the order of dismissal. He did so only in reply, assigning the blame elsewhere. His excuse fails since he was still the counsel of record who entered into the aforementioned so-ordered stipulation in April, 2006.

Compare, Leinas v. Long Island Jewish Med. Ctr., 72 AD3d 905 [2d Dept. 2010] [denying motion to vacate or to restore]; Bornstein v. Clearview Properties, Inc., 68 AD3d 1033 [2d Dept. 2009] [same]; Krichmar v. Queens Med. Imaging, P.C., 26 AD3d 417 [2d Dept. 2006] [same]; Kalyushin v. Rudisal, 306 AD2d 246 [2d Dept. 2003] [same] with Levine v. Agus, 28 AD3d 719 [2d Dept. 2006] [granting plaintiff's requested relief]; Zenteno v. Geils, 17 AD3d 457 [2d Dept. 2005] [same].

Defendants shall serve plaintiff's counsel with notice of entry together with a copy of this order bearing the County Clerk's stamped date of entry.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York [*2]

August 12, 2010