The doctor is not available on Monday/s, can I have another day please?

Last reviewed: September 2026

A specific explanation of a medical witness’s availability can matter more than a general request for another trial date. In Brooklyn Chiropractic v Unitrin, the defense identified the Monday conflict and the notice needed to overcome it. The Appellate Term ordered a new trial after the court refused an accommodation on that record.

Historical note: Brooklyn Chiropractic & Sports Therapy, P.C. v Unitrin Direct Auto Insurance Co., 55 Misc 3d 136(A), 2017 NY Slip Op 50494(U) (App Term, 2d Dept, April 13, 2017) is a fact-specific adjournment decision. It does not give every expert eight weeks’ notice or establish a constitutional right to a preferred trial date. The CPLR 2004 topic guide distinguishes trial scheduling from extensions of paper deadlines.

Two Mondays and one medical witness

The provider sought assigned no-fault benefits in Suffolk County District Court. The defense’s sole witness was a medical expert, needed on the only issue remaining for trial: medical necessity.

On July 14, 2014, a Monday, counsel requested an adjournment because that witness could not testify on Mondays. The provider’s witness testified, and the court agreed to continue the trial without announcing a date. The continuation was subsequently set for August 18, another Monday.

At that appearance, counsel explained that the expert could attend on Mondays only with at least eight weeks’ notice. The court denied another adjournment and entered judgment for the provider. On appeal, the importance of the testimony, the explanation already given and the absence of evidence of a request merely for delay supported reversal. The case was remitted for a new trial.

The record also showed willingness to try to arrange a Monday appearance if required. The request was therefore more specific than a demand that the court simply accept the doctor’s preferred calendar.

Jason’s original May 2017 analysis

The original practical reaction follows. The suggested two-to-eight-week range was scheduling advice, not a statutory deadline. The phrase “have not told” appears in the original; the surrounding point is to put actual availability before the court.

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.

Make availability usable to the court

Knowing that a witness cannot appear is only the beginning. A workable request identifies when the witness can appear and what would be required to make another date possible.

Before a trial appearance, counsel can prepare a short chronology: when the date was received, when the witness was contacted, what conflict was reported and what alternatives were explored. Keep the underlying communications available. If a conflict changes, update the information rather than repeating an earlier explanation that is no longer accurate.

Confirm more than a day of the week. A witness may be free on a particular Tuesday morning but unable to stay for cross-examination that afternoon. Travel, an existing court commitment and clinical appointments may affect different parts of the proposed schedule. Explain the actual constraint instead of calling all of them “unavailability.”

The record should also identify why the witness is needed. Here the testimony concerned the sole disputed issue. In another case, counsel should specify what remains to be proved and what the witness is expected to address. An attorney’s scheduling explanation does not itself establish the medical or technical proposition the witness would testify about.

What the eight-week detail does, and does not, mean

Eight weeks was the notice period described for this witness’s Monday availability. It was part of the factual showing the appellate court evaluated. It was not a new statewide minimum for calling physicians to trial.

That distinction prevents two mistakes. A party cannot assume it may refuse a nearer trial date simply because this opinion mentions eight weeks. Nor should counsel offer an arbitrary eight-week delay when the witness has confirmed a much earlier available date.

In preparing a current request, use the shortest realistic proposal supported by verified availability. If a longer period is genuinely necessary, explain why. Address the effect on the other side, including whether its witness has already testified or would need to return.

Do not assume that the parties’ agreement, a submitted request or a conversation with staff has changed the court’s date. Check the actual ruling and any conditions attached to it. Until relief is granted, a proposed alternative remains a proposal.

Why this differs from Middle Village Chiropractic

The Middle Village note records an unsuccessful request based on the difficulty of securing expert attendance in six weeks. The appellate court found no showing of diligent efforts to obtain the witnesses.

Reading the cases together gives Jason’s frustration a practical focus. The useful distinction is the detail in the record: efforts made, constraints explained, dates proposed and the role of the missing testimony. It is not a rule that one appellate panel always grants an adjournment while another always refuses.

Normandin v Bell provides a further comparison. There the issue was a brief continuance to complete a medical expert’s testimony within the period already allocated for trial. That setting differs from an open-ended postponement before a witness has been secured.

Preserve the scheduling ruling, not just the complaint

If the court refuses the request, the record should identify which alternative was requested and why. Saying only that counsel is “not ready” may omit the facts that make the refusal reviewable.

A practical record can distinguish three things: the witness’s actual restriction, counsel’s efforts to arrange attendance and the court’s stated reason for denying relief. When the proposed accommodation has several options, ask for clarity about which have been rejected. Do not embellish the explanation after the fact to match the reasoning of a reported decision.

That’s the value of having a transcript or a written ruling, especially if a continued trial is scheduled and the parties have left the courtroom. And then they get a later calendar notice. So compare that with what was discussed or what was said at an earlier appearance. Because the chronology is important. Not just the length of the adjournment, but when it occurs.

These are preparation suggestions, not a promise of appellate relief. Review of a trial adjournment remains tied to the actual circumstances and the record made below.

The merits remain separate

A new trial gives the parties another opportunity to present their proof. It does not establish whether the treatment was medically necessary. That distinction matters to insurers, providers and their counsel when assessing what remains to be done after reversal.

For a witness problem in a current no-fault case, assemble the notices, prior calendar rulings, transcript and scheduling correspondence before deciding on a procedural response. The firm’s no-fault defense page describes the practice, and the contact page provides a route for discussing the record.

Connect to the Encyclopedia

Use the extensions-of-time and adjournments hub to distinguish witness scheduling from late papers and default relief.

• Middle Village: a general scheduling complaint without a diligence showing
• Normandin: completing expert testimony after a brief continuance
• V.S. Medical: proving the excuse attached to an adjournment
• Mallards Dairy: seeking permission for a late expert affidavit
• Counsel Financial: an adjournment did not excuse a missed opposition deadline