IN RE: Roni Jacobson (2011)

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Order, Family Court, Bronx County (Andrea Masley, J.), entered on or about May 20, 2010, which dismissed the petition alleging a violation of a final order of protection with prejudice, unanimously affirmed, without costs.

Petitioner testified by telephone that she was unable to appear in New York for a fact-finding hearing on an alleged violation of a final order of protection because her broken toe was too painful to allow her to travel.   However, the record showed that petitioner had recently traveled to New York on business with the broken toe and that, in the days leading up to the hearing, she was able to run errands, walk around and attend dinner out with her husband and friends.   Accordingly, the court did not abuse its discretion in denying petitioner's application for an adjournment made on the eve of trial and dismissing the petition for failure to prosecute (see e.g. Fleetwood Paving v Consolidated Edison Co. of N.Y., 187 A.D.2d 697 [1992];  compare

Jun-Yong Kim v. A & J Produce Corp., 15 AD3d 251 [2005] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK