Willow Glen Associates v. Personal Painting Co.

[1] ORDER [2] This matter was heard before a panel of the Supreme Court pursuant to an order issued to the plaintiff to appear and show cause why its appeal should not be summarily denied and dismissed. In this case the plaintiff had appealed from a Superior Court judgment in favor of defendant Personal Painting Company.

[3] After reviewing the memoranda submitted by the parties and after hearing their counsel in oral argument, it is the conclusion of this court that cause has not been shown. In this case, after many continuances, default judgment was entered in favor of defendant. Because of plaintiffs' refusal to appear for trial, through no fault of plaintiffs' counsel who had attempted to procure their presence.

[4] Before this court plaintiffs counsel argued that relief should be granted under Rule 60(b) which provides for relief from final judgment because of mistake, inadvertence, surprise or excusable neglect. The plaintiff's counsel was unable to establish any of these necessary elements. Furthermore, a motion under Rule 60(b) must be filed in the Superior Court initially which was not done in this case.

[5] For these reasons plaintiffs appeal is denied and dismissed, the judgment appealed from is affirmed and the papers of the case are remanded to the Superior Court.

[6] WEISBERGER, J., did not participate.