New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 51088(U)(App. Term 2d Dept. 2017)
“Contrary to plaintiff’s contention on appeal, the Civil Court did not improvidently exercise its discretion in considering defendant’s late opposition papers (see CPLR 2004), which raised a triable issue of fact as to whether the claims had been timely denied.”
This is a good decision, especially since the Second Department case law (see my post from last month) encourages courts to exercise their discretion to extend the time to serve and file papers in the absence of prejudice.
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.
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.
Adotey v British Airways, PLC, 2016 NY Slip Op 08341 (2d Dept. 2016)
(1) “The granting of an adjournment for any purpose rests within the sound discretion of the Supreme Court (see Matter of Steven B., 6 NY3d 888, 889), and its determination will not be disturbed absent an improvident exercise of that discretion (see Diamond v Diamante, 57 AD3d 826, 827). In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors (see Hawes v Lewis, 127 AD3d at 922). It is not an improvident exercise of discretion to deny an adjournment where the need for such a request is based on the movant’s failure to exercise due diligence (see Matter of Breaker v ACS-Kings, 129 AD3d 715, 716; see also Armele v Moose Intl., 302 AD2d 986, 986).
(2) In addition, while a court has the discretion to grant an extension of time to file opposition papers, it must be upon a showing of good cause (see CPLR 2004). The delinquent party must offer a valid excuse for the delay (see Kubicsko v Westchester County Elec., Inc., 116 AD3d 737, 739).”
People do not realize that cases do not get adjourned automatically because the attorney has “more pressing things to do”. It is up to the sound discretion of the trial court. I would imagine there is more than meets the eyes here.
There is no need to grant an adjournment should the opposing party not have answering papers on the second motion return date.
The Fourth Department, in Counsel Fin. Servs., LLC v David Mcquade Leibowitz, P.C., 2009 NY Slip Op 08663 (4th Dept. 2009), observed the following:
“We note at the outset that the contentions of defendants are properly before us despite the fact that the order and judgment was entered upon their default. Although defendants did not move to vacate the order and judgment, they appeared in court on the adjourned return date of the motion and contested the entry of a default judgment (see Spano v Kline, 50 AD3d 1499, lv denied 11 NY3d 702, 12 NY3d 704; Jann v Cassidy, 265 AD2d 873, 874; Spatz v Bajramoski, 214 AD2d 436). Nevertheless, we conclude that the court properly granted the motion.”
“The record establishes that only plaintiff’s counsel appeared in court on the initial return date of the motion but that the court thereafter granted defendants additional time in which to submit papers in opposition to the motion and adjourned the matter to a date subsequent thereto. The court stated that, in the event that defendant failed to appear on the adjourned return date, “the matter will be deemed submitted.” Defendants failed to submit any opposing papers by the date specified by the court and, although defendant appeared in court on the adjourned return date, he requested a second adjournment at that time, in which to prepare opposing papers. The court determined that defendants already were in default at that time, inasmuch as they had failed to submit opposing papers.”
A few things are noteworthy here. First, it seems that Defendant should have probably moved on notice to vacate the default as opposed to attempting to vacate the default through appealing the order that resulted from the hearing. Second, it seems that the Fourth Department really has taken, at least in this case, a really tough line on parties who are not ready on motion return dates.
This is similar to the cases where a peer doctor fails to review sufficient documentation before arriving at an opinion.
“Lack of Foundation to form an expert opinion”
Luu v Paskowski
2008 NY Slip Op 10135 (2d Dept. 2008)
The pertinent portion of this case is as follows:
“[Plaintiff’s expert] Zola did not refer to any part of the hospital records, and did not state when the blood loss occurred or how it caused the small bowel obstruction and hematoma. Zola made no reference to any of the hospital records in his affidavit, and did not state that he had reviewed the pleadings and depositions. Zola’s affidavit was conclusory and lacked a foundation (see Thompson v Orner, 36 AD3d at 792; Furey v Kraft, 27 AD3d at 418).
Procedural – default viz a vi failure to obtain an adjournment on the record
Diamond v Diamante
2008 NY Slip Op 10117 (2d Dept. 2008)
“plaintiffs and their attorney, nonparty James D. Reddy, appeal from a judgmentwhich, inter alia, upon the denial of the plaintiffs’ application for an adjournment, is in favor of the defendants and against the plaintiff, dismissing the complaint, and against the nonparty James D. Reddy awarding costs and imposing sanctions.”
“Where, as here, the order appealed from was made upon the plaintiffs’ default, “review is limited to matters which were the subject of contest below” (Matter of Constance P. v Avraam G., 27 AD3d 754, 755 [internal quotations marks omitted]; see James v Powell, 19 NY2d 249, 256 n 3; Wexler v Wexler, 34 AD3d 458, 459; Brown v Data Communications, 236 AD2d 499). [*2]Accordingly, in this case, review is limited to the denial of the plaintiffs’ request for an adjournment, on the appeal by the plaintiffs, and the award of costs and imposition of sanctions against nonparty James D. Reddy, on the appeal by the nonparty (see Matter of Paulino v Camacho, 36 AD3d 821, 822; Tun v Aw, 10 AD3d 651, 652).
Turning to the merits, “[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283; see Matter of Steven B., 6 NY3d 888, 889; Matter of Sicurella v Embro, 31 AD3d 651, lv denied 7 NY3d 717), and its determination will not be disturbed absent an improvident exercise of that discretion (see Davidson v Davidson, 54 AD3d 988). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v Embro, 31 AD3d at 651), including “the merit or lack of merit of the action, extent of the delay,” the number of adjournments granted, the “lack of intent to deliberately default or abandon the action” and the length of the pendency of the proceeding (Belsky v Lowell, 117 AD2d 575, 576; see Matter of Claburn v Claburn, 128 AD2d 937, 938).”