Key Takeaway
Court upholds denial of trial adjournment request where defense failed to show due diligence in securing expert witnesses despite 6-week notice period.
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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 “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.”
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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.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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