CARRASQUILLO v. Alberto Mezarina, Respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Carlos CARRASQUILLO, Appellant, v. CITY OF NEW YORK, Defendant, Alberto Mezarina, Respondent.

Decided: February 24, 1997

Before ROSENBLATT, J.P., and COPERTINO, PIZZUTO, KRAUSMAN and FLORIO, JJ. Bernstein & Gershman, P.C., Garden City, (Richard S. Gershman, of counsel), for appellant. Carole A. Burns & Associates, Mineola, (Anthony W. Russo, of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated January 18, 1996, which granted the defendant Alberto Mezarina's motion to stay the action pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C., Appendix § 501 et seq.).

ORDERED that the order is reversed, as a matter of discretion, with costs, and the motion is denied.

The Supreme Court improvidently exercised its discretion in granting the appellant's motion to stay the action pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C., Appendix § 501 et seq.).   The motion was supported only by affirmations of counsel claiming that the appellant was in the Air Force and serving in Portugal.   Although counsel claims to have spoken personally with the appellant concerning his service, counsel failed to provide an adequate explanation as to why he could not further communicate with the appellant in order for the appellant to participate in his defense.   Nor did counsel make any showing that the appellant could not secure leave to attend a trial or present his proof by other means.   Accordingly, the motion should have been denied (see, Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587;  Tabor v. Miller, 3d Cir., 389 F.2d 645, cert. denied Stearns v. Tabor, 391 U.S. 915, 88 S.Ct. 1810, 20 L.Ed.2d 654;  Hackman v. Postel, 675 F.Supp. 1132;  Richichi v. Grillo, 42 A.D.2d 875, 346 N.Y.S.2d 860).

MEMORANDUM BY THE COURT.

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