Brooklyn Chiropractic & Sports Therapy, P.C. v Unitrin Direct Auto Ins. Co., 2017 NY Slip Op 50494(U)(App. Term 2d Dept. 2017)
(1) “On the first trial date at issue, July 14, 2014, a Monday, defendant requested an adjournment, stating that its witness could not testify on Mondays. After plaintiff’s witness testified, the court agreed to continue the trial, but did not announce a date. The trial was subsequently rescheduled to August 18, 2014, another Monday. At that date, defendant again requested an adjournment, stating that its witness could not testify on Mondays without at least eight weeks’ notice. That request was denied, and a judgment was entered in favor of plaintiff.”
(2) “in the circumstances presented, we find that the District Court improvidently exercised its discretion in refusing to grant defendant an adjournment or to reschedule the trial for a day other than a Monday or to a Monday more than eight weeks later”
Honestly, the best way to attack this issue is to find out what days your expert is available. you yell the TAP judge or trial court, my expert is available on a series of days. Make sure you are within 2-8 weeks of trial date as to availability. Why is my expert not here today? He is in the Bronx.
A couple of things happened in this exchange. First, you accounted for your expert on trial day. Second, you have not told the Court the days your expert is available. Third, you protected the record. Contrast this with the Geico cases of the week before where GEICO did not explain to the Court the experts were available on certain days.