Discretion was not abused

Last reviewed: September 2026

A trial adjournment for an unavailable expert depends on the record made when the request is presented. Saying that six weeks was insufficient to book a witness did not establish diligence in Middle Village Chiropractic. Jason disagreed with that result. His objection, preserved below, is a criticism of the decision, not the rule the court adopted.

Historical note: Middle Village Chiropractic v GEICO General Insurance Co., 55 Misc 3d 132(A), 2017 NY Slip Op 50431(U) (App Term, 2d Dept, April 7, 2017) affirmed the denial of an adjournment on this record. Compare the different showing in Brooklyn Chiropractic, linked below. For deadline extensions, rather than witness scheduling alone, start with the CPLR 2004 guide.

What the defense needed the expert to prove

This was a provider’s action for assigned no-fault benefits in Queens Civil Court. An earlier order left medical necessity as the issue for trial. The defense therefore needed more than an attorney ready to argue: it needed its expert witnesses available to address the remaining issue.

The notice of trial was filed on February 25, 2015. When the case appeared on April 6, counsel requested an adjournment, explaining that six weeks was not enough to arrange witnesses for the firm’s trials. The request was denied. Without its experts, the defense could not proceed, and judgment was entered for the provider.

The Appellate Term emphasized the absence of a showing of efforts to secure the witnesses during those six weeks. It also considered the action’s age, nearly five years. It affirmed. The opinion did not prescribe six weeks as an adequate preparation period in every case.

Jason’s original April 2017 commentary

The following is the original reaction. Its prediction about another appellate court and proposed calendar reform are opinion, not holdings or adopted court rules.

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.

What to put in an expert-adjournment request

The practical problem is the gap between knowing the witness is unavailable and giving the judge facts on which to act. A request that only describes a busy practice leaves the judge without a proposed way to finish the trial.

A useful preparation record can answer these questions:

• When did counsel receive the trial date, and when was the expert contacted?
• What responses came back? Keep the scheduling correspondence available rather than relying on a general recollection.
• Why is this witness needed for the issue that remains? Identify the expected testimony without treating counsel’s explanation as a substitute for that testimony.
• What specific dates can the witness attend? Confirm those dates with the witness before offering them.
• What work was done to avoid the conflict, and what further step would the requested adjournment permit?
• What prejudice or calendar problem would the proposal create for the adversary, and is there a narrower alternative?

These are drafting suggestions drawn from the scheduling problem in the decision, not a checklist that guarantees an adjournment. If an asserted fact cannot be supported, it should not be included merely because it would make the request sound stronger.

The timing of the request also belongs in the record. A conflict identified when the notice arrives is different from one first investigated when the case is called. Explain that chronology honestly. If the witness cannot give a reliable return date, say so and explain what information is still needed. An unsupported promise of availability only creates another problem at the next appearance.

Why the Monday case came out differently

Brooklyn Chiropractic v Unitrin involved an identified day-of-week conflict and a stated notice period for overcoming it. The court knew the defense’s sole medical witness could not appear on Mondays without sufficient notice, yet the continued trial was set for another Monday.

The contrast is useful for both sides of an adjournment application. The issue is not whether a physician is generally busy. It is what the court was told, what the proposed accommodation would accomplish, and whether the request was a device for delay.

Normandin v Bell adds another distinction: a short continuance to complete testimony during a trial period the court had already allotted. Neither decision establishes a universal entitlement to a first adjournment.

Trial readiness is different from a paper deadline

CPLR 2004 authorizes extensions for good cause, subject to express legal limits. This note concerns the exercise of trial-calendar discretion. Do not substitute a motion-paper timetable for the actual trial directions.

For example, a lawyer seeking to serve late opposition needs to address the reason for that delay and permission to submit the papers. A lawyer seeking a witness adjournment needs to explain the witness problem and the requested scheduling relief. Both involve discretion, but the requested acts and supporting facts differ.

Before the appearance, read the notice, any prior calendar orders and the applicable court or part instructions together. Record exactly what relief was requested and how the court ruled. An appellate court reviewing the refusal will need that record; a later account of what counsel intended to say cannot reliably fill its gaps.

What this means for the client

And an adjournment ruling does not by itself tell you whether treatment was necessary. And yet in this case, the inability to call those experts, they didn’t have those experts so their defense couldn’t proceed on that issue that was left for trial and that is how witness preparation can affect the result even if counsel believes that their underlying defense is strong.

For a scheduling problem in an existing no-fault matter, a useful first step is to assemble the trial notices, prior orders, witness communications and any transcript of the request. The firm’s no-fault defense practice and contact page provide a route for discussing that record. Do not assume that a request for more time suspends an existing trial date.

Connect to the Encyclopedia

The CPLR 2004 extensions-of-time hub groups the archive by the kind of deadline or adjournment involved.

• Brooklyn Chiropractic: a concrete alternative to an unavailable Monday witness
• Normandin: a brief continuance to complete medical expert testimony
• V.S. Medical: proving the excuse underlying a conditional adjournment
• Counsel Financial: missing the opposition deadline after an adjournment
• Mallards Dairy: permission to submit a late expert affidavit