Opinion
No. 4145.
February 1, 2011.
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.
Ellyn I. Bank Dugow, New York, for appellant.
David K. Bertan, Bronx, for respondent.
Before: Tom, J.P., Mazzarelli, Renwick, Freedman and Manzanet-Daniels, JJ.
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 AD2d 697; compare Jun-Yong Kim v AJ Produce Corp., 15 AD3d 251).