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Discretion was not abusedApril 10, 2017

Middle Vil. Chiropractic v Geico Gen. Ins. Co., 2017 NY Slip Op 50431(U)(App. Term 2d Dept. 2017)

(1) “Plaintiff filed a notice of trial on February 25, 2015, and the matter appeared on the trial calendar on April 6, 2015. On April 6, 2015, defense counsel made an oral application to adjourn the trial, stating that “[s]ix weeks is not a reasonable amount of time . . . for our offices to book a witness for all these trials.” The Civil Court denied the application. As defendant was unable to proceed to trial in the absence of its expert witnesses, the court ordered that judgment be entered in plaintiff’s favor. A judgment in favor of plaintiff in the principal sum of $1,549.41 was entered on July 27, 2015.”

(2) “”An application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion”

(3) “Here, although expert witness testimony was critical, defense counsel made no showing that due diligence had been exercised in attempting to secure the attendance of its witnesses during the six-week period between the filing of the notice of trial and the action’s appearance on the trial calendar. In view of the foregoing, and the fact that this case had been commenced almost five years before it was reached for trial, we find that it was not an improvident exercise of discretion for the trial court to have denied defendant’s request for an adjournment.”

I must disagree with this decision. Whenever the Civil Courts are given carte blanche to exercise their discretion, problems arise.  I generally agree that some type of diligence is necessary in order to adjourn a final trial.  E.g.:

(a) “I tried to get a doctor and two subs and they were booked”

(b) “My witness is in Kings, where all no-fault trials are heard”

Yet, a case that is first time on –  6 weeks after a notice of trial is filed – should never be presumptive final.  The fact that Civil Court, Queens County under various administrative judges made a promise to the Queens County bar that all PIP cases would banish in the doldrums of hell should not inure to the benefit to the plaintiffs who still file there.  That is what I learn from this case.

And again, I know the First Department would have probably reversed had it been presented with the same set of facts.  Shame on the Appellate Term for perpetuating a broken system.

I believe the court rules need to be amended to require a pre-trial conference and mandate that no-final trial (unless on consent) be scheduled less than 6 weeks following the conclusion of any pre-trial conference.  OCA – do not let me down.

2 Responses

  1. Bruno Tucker says:

    isn’t THIS THE SAME CARRIER MAKING HUNDREDS OF MOTIONS TO DISMISS FOR 3216? COMPLAINING THAT THE TRIAL IS GOING TO HAPPEN TO FAST? I DO NOT DISAGREE THAT DISCRETION AND CIVIL COURT MIXED TOGETHER IS NOT A COCKTAIL I WANT TO DRINK, BUT SHOULD NECESSITY TRIALS REALLY HAPPEN ANYWAY? sAVE THE dR. FEE, FLIP A COIN AND GO HOME EARLY. oR IN YOUR CASE GO HOME FIGURE OUT WHY I AM STILL WRITING IN CAPITALS. (THOUGH I APPRECIATE THE SITE AND I AM LUCKY I CAN TURN ON A COMPUTER)

  2. nycoolbreez says:

    so we should feel sorry for the pimp with a shortage of prostitutes in his stable?
    they should get over themselves

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