
    Rosa JIMENEZ, Plaintiff-Appellant, v. SUPER MARKET SERVICE CORP. and Morris Cherkos, Defendants-Appellees.
    Docket No. 02-7622.
    United States Court of Appeals, Second Circuit.
    Dec. 26, 2002.
    Harvey L. Holl (Jeffery I. Marks, of counsel), New York, NY, for Appellant.
    Robert Ondrovic, Boeggeman, George, Hodges & Corde, P.C. (Cynthia Dolan, of counsel), White Plains, NY, for Appellees.
    Present JON O. NEWMAN, SACK and SOTOMAYOR, Circuit Judges.
   SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.

The plaintiff Rosa Jimenez appeals from a judgment entered on April 22, 2002, by the United States District Court for the Southern District of New York (Denise L. Cote, Judge) granting the defendants Morris Cherkos and Supermarket Service Corporation judgment as a matter of law, and denying the plaintiffs motions for a new trial or a voluntary discontinuance without prejudice. On appeal, Jimenez concedes that it was proper for the district court to dismiss the case, but argues that dismissal with prejudice was an abuse of discretion.

In the proceedings below, the district court found that Jimenez’s counsel had intentionally delayed the trial in order to avoid paying his medical expert for testifying over a period of two days. Upon reviewing the record, we conclude that this finding of fact was not clearly erroneous.

Under such circumstances, the district court was clearly authorized to dismiss the plaintiffs action with prejudice. See Fed.R.Civ.P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 635, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Assuming arguendo that the court had “discretion” with respect to the matter of prejudice, after dismissing at least in part because of failure of proof on an element of the plaintiffs cause of action, we conclude that the court did not abuse that discretion.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.  