Rodriguez v. Pisa Caterers, Inc.

Jan 23, 1989
Versions:146 A.D.2d 686
537 N.Y.S.2d 50
1989 N.Y. App. Div. LEXIS 598

— In an action to recover damages for personal *687injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Held, J.), dated July 9, 1987, which dismissed the action, sua sponte.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the matter is restored to the Trial Calendar and remitted to the Supreme Court, Kings County, for further proceedings.

We find that the trial court’s denial of the plaintiff’s application for an adjournment is reviewable by this court (see, Jensen v Union Ry. Co., 260 NY 1, 4) and that an adjournment should have been granted. A review of the record demonstrates that a witness, essential to the plaintiff’s ability to establish a prima facie case, had recently become unavailable. In view of the efforts made by counsel for the plaintiff to contact that witness and the fact that the defendant did not raise any objection to the adjournment or set forth any claim of prejudice, a short adjournment for the purpose of allowing the plaintiff the opportunity to elicit the testimony of this witness would have been appropriate (see, American Tel. & Tel. Co. v Lincoln Indus. Enters., 122 AD2d 925; Distribuidora Nacional De Disco v Rappaport, 92 AD2d 559; Balogh v H.R.B. Caterers, 88 AD2d 136; Terone v Anderson, 54 AD2d 562). In addition, we note that the court erred in dismissing the plaintiff’s case immediately following the denial of her application for an adjournment particularly since the defendant did not move for dismissal. Mangano, J. R, Brown, Kunzeman and Kooper, JJ., concur.