Klein v Klein

[*1] Klein v Klein 2005 NY Slip Op 50106(U) Decided on February 2, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: February 2, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-573 Q C

LUISE KLEIN, Appellant, -and- NANCY KLEIN, Plaintiff,

against

WILLIAM KLEIN and KLEIN'S AUTO RENTAL SERVICE, Respondents.

Appeal by plaintiff Luise Klein from a judgment of the Civil Court, Queens

County (P. Kelly, J.), entered December 24, 2002, in favor of defendants dismissing
the complaint and from an order of the same court, entered June 10, 2003, which denied plaintiff Luise Klein's motion to vacate the judgment and restore the action to the trial calendar. Judgment and order affirmed without costs.

It is well settled that a request for an adjournment is addressed to the sound discretion of the trial court and its determination will not be disturbed absent an improvident exercise of that discretion (see Brusco v Davis-Klages, 302 AD2d 674 [2003]; Wolosin v Campo, 256 AD2d 332 [1998]). While adjournments should be liberally granted in order to afford parties the opportunity to obtain material evidence and to prevent miscarriages of justice, an adjournment is properly denied where the unavailability of a witness is due to a failure to exercise due diligence (see Harper v Chang, 267 AD2d 1011 [1999]; Reo v Klarman, 259 AD2d 477 [1999]; Cromartie v [*2]
New York City Tr. Auth., 113 AD2d 915 [1985]).

In this action to recover damages for personal injury, a review of the record
does not support plaintiff's contention that she made diligent efforts to secure her treating dentist's presence at trial. The record reflects that the plaintiff had five months to secure the attendance of said witness but failed to do so. Accordingly, the court's denial of plaintiff's request for an adjournment of two weeks cannot be deemed to be
an abuse of discretion (see Brusco v Davis-Klages, 302 AD2d 674, supra; Harper v Chang, 267 AD2d 1011, supra ; Reo v Klarman, 259 AD2d 477, supra; Wolosin v Campo, 256 AD2d 332, supra; Cromartie v New York City Tr. Auth., 113 AD2d at 915-916).

Pesce, P.J., and Patterson, J., concur.

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to reverse the order and grant plaintiff Luise Klein's motion to vacate the judgment in the following memorandum:

A review of the record does not support upholding the dismissal of the
complaint but rather points to an improvident exercise of discretion by the court below in denying plaintiff's request for a brief adjournment of the damages phase of the bifurcated trial (see generally Papoutsis v NOV Trans. Corp., 309 AD2d 841 [2003]; Brusco v Davis-Klages, 302 AD2d 674 [2003]; Matter of Jamel C., 302 AD2d 457 [2003]; Mura v Gordon, 252 AD2d 485 [1998]; Halloran v Spina Floor Covering, 185 AD2d 149 [1992]). The record reveals that plaintiff Luise Klein requested a
reasonable two-week adjournment due to the unavailability of her treating dentist who was leaving the state for the duration of a religious holiday, that granting a short continuance would not have been prejudicial to the defendants and that the request by plaintiff for the adjournment was made prior to any witnesses being called.
Accordingly, I respectfully dissent.
Decision Date: February 02, 2005