Proscan Imaging, P.C. v Lumbermens Mut. Cas. Co.

[*1] Proscan Imaging, P.C. v Lumbermens Mut. Cas. Co. 2009 NY Slip Op 51500(U) [24 Misc 3d 136(A)] Decided on July 9, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: :PESCE, P.J., GOLIA and RIOS, JJ
2008-1092 Q C.

Proscan Imaging, P.C. as assignee of JOVANNY RODRIGUEZ, Respondent,

against

Lumbermens Mutual Casualty Company/Kempers Ins., Appellant.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated September 21, 2007, deemed from a judgment of the same court entered May 21, 2008 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $912.

Judgment affirmed without costs.

At the commencement of the trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated to plaintiff's prima facie case. Thereafter, defendant's attorney, in effect, requested an adjournment, stating that he had subpoenaed a witness, who had not appeared. The court stated that defendant had received two prior adjournments, that defendant had had more than a month to subpoena the witness and that it had not secured the so-ordered subpoena until the day before the trial. The court declined to grant any further adjournments, and ordered that judgment be entered in plaintiff's favor. Defendant appeals from this decision. A judgment was subsequently entered, from which we deem the appeal (see CPLR
5520 [c]).

It is well settled that an application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]), and the court's determination will not be disturbed absent an improvident [*2]exercise of that discretion (see Wolosin v Campo, 256 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). We find that the Civil Court did not improvidently exercise its discretion in declining to grant defendant an adjournment. Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009