Key Takeaway
Court reverses trial judgment after defendant's expert unavailability on Mondays wasn't accommodated, highlighting importance of scheduling flexibility in litigation.
This article is part of our ongoing adjournments coverage, with 10 published articles analyzing adjournments issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Trial Scheduling and Expert Witness Availability: When Courts Must Accommodate
Expert witness testimony plays a critical role in no-fault insurance litigation, particularly when insurers defend against medical necessity claims. However, expert availability constraints can create scheduling conflicts that courts must navigate carefully. A recent Appellate Term decision addresses when trial courts abuse their discretion by refusing to accommodate legitimate expert availability issues.
The right to present witnesses constitutes a fundamental component of due process. When courts unreasonably refuse to schedule trials on dates when key witnesses are available, they may deprive parties of their ability to present complete defenses. This becomes especially problematic in medical cases where expert testimony often determines outcomes.
New York courts generally enjoy broad discretion in managing their calendars and scheduling trials. However, this discretion is not unlimited. When parties provide advance notice of witness unavailability and request reasonable accommodations, courts must balance calendar efficiency against litigants’ rights to present their cases fully. The challenge lies in distinguishing legitimate scheduling needs from dilatory tactics.
Case Background
Brooklyn Chiropractic & Sports Therapy, P.C. sued Unitrin Direct Auto Insurance Co. seeking payment for medical services. The case proceeded to trial on July 14, 2014, which fell on a Monday. At that trial date, the defendant’s attorney requested an adjournment, explaining that the defense expert witness could not testify on Mondays due to scheduling constraints.
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The trial court permitted the plaintiff’s witness to testify but agreed to continue the trial to allow the defendant’s expert to appear. However, the court scheduled the continued trial for August 18, 2014, another Monday. When that date arrived, defendant again requested an adjournment, explaining that the expert required at least eight weeks’ notice to arrange availability on Mondays. The court denied this second adjournment request and proceeded to judgment in favor of the plaintiff. The defendant appealed, arguing the court abused its discretion.
Jason Tenenbaum’s Analysis:
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”
Reversed.
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.
Legal Significance: Balancing Calendar Management with Due Process
The Appellate Term’s reversal in Brooklyn Chiropractic establishes important guidance about trial scheduling obligations. Courts abuse their discretion when they repeatedly schedule trials on dates known to conflict with key witness availability, particularly after the party has explained the scheduling constraints and the reasons underlying them.
The decision recognizes practical realities of expert witness practice. Medical experts maintain busy clinical schedules and often designate specific days for court appearances. When an expert consistently avoids certain days for legitimate professional reasons, courts should not treat this as a litigation tactic warranting scheduling sanctions.
However, the ruling does not create unlimited adjournment rights. The defendant properly explained the specific availability constraints and provided information about the notice period required. This transparency distinguished the request from vague or open-ended adjournment demands. The court’s error lay in acknowledging these constraints on the first trial date but then immediately rescheduling to another problematic Monday without providing adequate notice.
Jason Tenenbaum’s practical analysis identifies key record-protection strategies. Attorneys facing similar situations should affirmatively state specific alternative dates when experts are available, explain the expert’s current commitments accounting for absence, and create a clear record that the party attempted to accommodate the court while protecting the right to present testimony.
Practical Implications: Protecting Your Trial Record
Defense attorneys in no-fault cases should proactively manage expert scheduling issues. Well before trial dates, confirm expert availability and notify courts and adversaries about any day-of-week restrictions. When requesting adjournments, provide specific information about alternative dates when experts can appear, demonstrating good faith efforts to proceed expeditiously.
If courts schedule trials on dates when experts are unavailable, attorneys must make clear records. State specifically which days the expert is available, explain why the expert cannot appear on the scheduled date, and request that the court either adjourn to an available date or provide sufficient notice for the problematic day. This record becomes essential for appellate review if courts refuse reasonable accommodation.
Plaintiff attorneys should recognize that unreasonable scheduling can backfire. While securing quick trial dates may seem advantageous, judgments obtained after courts improperly exclude defense testimony face reversal risk. Accommodating reasonable scheduling needs may delay resolution but produces more stable outcomes.
Trial courts should exercise scheduling discretion with awareness that repeated scheduling on dates known to conflict with witness availability may constitute reversible error. When parties provide legitimate advance notice of conflicts and suggest alternatives, courts should seriously consider accommodation absent evidence of dilatory tactics.
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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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