Irin B. Wahid, etc., appellant, v. Nazita Amni Pour, etc., defendant, Fred Khalili, etc., et al., respondents.

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

Irin B. Wahid, etc., appellant, v. Nazita Amni Pour, etc., defendant, Fred Khalili, etc., et al., respondents.

2010–07845 (Index No. 22447/04)

Decided: November 22, 2011

ANITA R. FLORIO, J.P. L. PRISCILLA HALL LEONARD B. AUSTIN JEFFREY A. COHEN, JJ. John J. Ciafone, Astoria, N.Y., for appellant. Patrick F. Adams, P.C., Great River, N.Y. (Charles J. Adams and Frank Cali of counsel), for respondents.

Argued—October 27, 2011

DECISION & ORDER

In an action to recover damages for dental malpractice, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Queens County (O'Donoghue, J.), dated June 16, 2010, as, upon an order of the same court dated October 29, 2009, as amended by an order of the same court dated January 4, 2010, sua sponte, in effect, directing the dismissal of the complaint insofar as asserted against the defendants Fred Khalili and Kings Dentistry pursuant to 22 NYCRR 202.27(b) upon the plaintiff's failure to appear at a scheduled conference, is in favor of the defendants Fred Khalili and Kings Dentistry and against her dismissing the complaint insofar as asserted against those defendants.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

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 plaintiff's failure to appear at a scheduled conference (see 22 NYCRR 202.27[b];  Syed v. Fedor, 296 A.D.2d 399).   Contrary to the plaintiff's 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).   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 plaintiff's remaining contentions are either without merit or improperly raised for the first time on appeal.

FLORIO, J.P., HALL, AUSTIN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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