Key Takeaway
New trial ordered when treating physician expert arrived without required original medical file and was unavailable for rescheduled testimony dates.
This article is part of our ongoing adjournments coverage, with 89 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.
Normandin v Bell, 2018 NY Slip Op 04053 (3d Dept. 2018)
“When the expert eventually arrived in the late morning of December 1, 2016, he did not have his original file with him. (In the Third Department, the local rules require the treating doctor to have the original file with them.)
According to the expert, he left the original file in his hotel and it was his belief that it was not necessary for him to have it in order to testify. Defendant objected to having the expert testify until the original file was with him. Supreme Court directed the expert to have his office make arrangements to immediately bring the original file to the courthouse with the hope that it would arrive in the afternoon. According to the court, the expert could then testify that afternoon and finish the next day, on Friday, December 2, 2016. Plaintiffs’ counsel, however, advised the court that the expert had scheduled appointments with patients on December 2, 2016 and was unavailable to testify that day or on December 5, 2016. The next available day for the expert was Tuesday, December 6, 2016. The court, however, instructed the expert to reschedule his appointments. The expert testified in the afternoon of December 1, 2016, but by the completion of direct examination by plaintiffs’ counsel, the original file had not arrived. Defendant thereafter orally moved to strike the expert’s testimony. The court denied the oral application as premature.
On December 2, 2016, plaintiffs’ expert did not appear. Defendant renewed his motion to strike the expert’s testimony and plaintiffs moved for, among other things, a continuance. Supreme Court, among other things, denied plaintiffs’ motion for a continuance and granted defendant’s motion to strike. After plaintiffs rested, defendant moved to dismiss the complaint based upon plaintiffs’ failure to prove a prima facie case due to the absence of expert testimony. Supreme Court granted the motion and a judgment was subsequently entered thereon. Plaintiffs now appeal. We reverse.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
Whether to grant a continuance rests in the sound discretion of the court (see Matter of Anthony M., 63 NY2d 270, 283 ; Stone v Hidle, 266 AD2d 705, 706 ) and, absent an abuse of such discretion, the court’s determination will not be disturbed (see Gutin-Nedo v Marshall, Cheung & Diamond, 301 AD2d 728, 729 ; Gombas v Roberts, 104 AD2d 521, 522 ). “t is an abuse of the court’s discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Cirino v St. John, 146 AD2d 912, 913 ; see Black v St. Luke’s Cornwall Hosp., 112 AD3d 661, 661 ; Brusco v Davis-Klages, 302 AD2d 674, 674 ).
We conclude that plaintiffs’ motion for a continuance should have been granted (see Stevens v Auburn Mem. Hosp., 286 AD2d 965, 966 ; Cirino v St. John, 146 AD2d at 914). The record does not support Supreme Court’s finding that the failure of plaintiffs’ expert to appear and complete his testimony on December 2, 2016 stemmed from a lack of due diligence by plaintiffs (see Brusco v Davis-Klages, 302 AD2d at 674-675; compare McKenna v Connors, 36 AD3d 1062, 1064 , lv dismissed and denied 8 NY3d 969 ). Furthermore, the expert’s testimony was material, plaintiffs requested only a brief adjournment, the court had allotted two weeks for trial and the continuance request was not made for the purpose of delay. Accordingly, Supreme Court abused its discretion in denying plaintiffs’ request for a continuance (see Zysk v Bley, 24 AD3d 757, 758 ; Mura v Gordon, 252 AD2d 485, 485 ; Hoffner v County of Putnam, 167 AD2d 755, 756 ; Gombas v Roberts, 104 AD2d at 522).
In the real world of law, this type of circumstance always calls for a re-trial. I would say that even in NF provided you get the availability dates of the doctor, this will work also.
Related Articles
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.
Keep Reading
More Adjournments Analysis
Expert Witness in Car Accident Lawsuits
Learn how expert witnesses in New York car accident lawsuits help establish fault, causation, and damages through accident reconstruction, medical testimony, and economic analysis.
May 14, 2025
Expert opinion
Court reminds attorneys that expert opinions must address specific assertions with cited evidence, not just conclusory statements, in personal injury litigation.
Mar 22, 2021
Expert Qualifications and CPLR 2106 Compliance in NY Medical Malpractice Cases
Lopez accepted an orthopedist's opinion in a podiatry case and found a licensure objection unpreserved. Expert qualifications and current CPLR 2106.
Nov 11, 2015
Dr. Grinsberg is incompetent to testify as a matter of law
Court rules psychologist from Ukraine incompetent to testify as expert witness due to lack of proper credentials in New York no-fault insurance case.
May 18, 2011
Physical Therapist Expert Testimony Limitations in New York Personal Injury Cases
New York courts limit physical therapist testimony in personal injury cases — they cannot diagnose, make prognoses, or determine permanency.
Feb 6, 2010
By-Report
Court rules insurers must request additional documentation for "By Report" CPT codes before denying no-fault claims, addressing proper claim procedures.
Nov 4, 2017Was this article helpful?
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.
If you need legal help with a adjournments matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
