Bronx Expert Radiology, P.C. v Lumbermens Mut. Cas. Co.

[*1] Bronx Expert Radiology, P.C. v Lumbermens Mut. Cas. Co. 2007 NY Slip Op 50113(U) [14 Misc 3d 133(A)] Decided on January 26, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 26, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, J.P., McCOOE, SCHOENFELD, JJ
570629/06.

Bronx Expert Radiology, P.C., a/a/o Angel Martinez, Plaintiff-Respondent,

against

Lumbermens Mutual Casualty Co. Defendant-Appellant.

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), entered October 28, 2005, which granted plaintiff's motion for a directed verdict on the issue of liability and awarded it damages in the principal sum of $1,757.34.

PER CURIAM:

Order (Fernando Tapia, J.), reversed, without costs, and matter remitted to Civil Court for trial.

Although an application for an adjournment is addressed to the sound discretion of the trial court (see Matter of Anthony M., 63 NY2d 270, 283 [1984]), Civil Court improvidently exercised its discretion in denying defendant's application for a brief adjournment based upon the demonstrated unavailability of its expert medical witness. The adjournment was not for purposes of delay, the expert's testimony was critical to the sole contested liability issue in the case, and the need for the adjournment did not result from any lack of diligence on the part of defense counsel (see Conde v Williams, 6 AD3d 569 [2004]; see also Balogh v H.R.B. Caterers, 88 AD2d 136, 141 [1982]).
This constitutes the decision and order of the court.
I concurI concurI concur

Decision Date: January 26, 2007