Calendar Date: April 23, 2018Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey andPritzker, JJ.__________O’Connell & Aronowitz, Albany (Annette G. Hasapidis, SouthSalem of counsel), for appellants.Thorn Gershon Tymann & Bonanni LLP, Albany (Mandy McFarlandof counsel), for respondent.__________Aarons, J.Appeal from a judgment of the Supreme Court (Crowell, J.),entered December 23, 2016 in Saratoga County, upon a dismissal ofthe complaint at the close of plaintiff’s case.In 2013, plaintiff Marilyn A. Normandin and her spouse,derivatively, commenced this medical malpractice action allegingthat defendant Joseph W. Bell (hereinafter defendant) departedfrom accepted medical practice and that such departures causedher physical injuries. After joinder of issue, trial commenced.Jury selection was completed on November 28, 2016 and openingstatements were given on November 29, 2016. Plaintiffs’ expertwas scheduled to testify on December 1, 2016. On that morning,however, plaintiffs’ counsel advised Supreme Court that theexpert was not present but was en route from the Philadelphia,Pennsylvania area and would be arriving later in the morning.Plaintiffs’ counsel explained that the expert had testified inanother case and, although counsel had expected the expert toarrive on November 30, 2016, the expert did not feel safe drivingthat night to Saratoga County because of weather-related issues.When the expert eventually arrived in the late morning ofDecember 1, 2016, he did not have his original file with him.According to the expert, he left the original file in his hoteland it was his belief that it was not necessary for him to haveit in order to testify. Defendant objected to having the experttestify until the original file was with him. Supreme Courtdirected the expert to have his office make arrangements toimmediately bring the original file to the courthouse with thehope that it would arrive in the afternoon. According to thecourt, the expert could then testify that afternoon and finishthe next day, on Friday, December 2, 2016. Plaintiffs’ counsel,however, advised the court that the expert had scheduledappointments with patients on December 2, 2016 and wasunavailable to testify that day or on December 5, 2016. The nextavailable day for the expert was Tuesday, December 6, 2016. Thecourt, however, instructed the expert to reschedule hisappointments. The expert testified in the afternoon of December1, 2016, but by the completion of direct examination byplaintiffs’ counsel, the original file had not arrived.Defendant thereafter orally moved to strike the expert’stestimony. 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 andplaintiffs moved for, among other things, a continuance. SupremeCourt, among other things, denied plaintiffs’ motion for acontinuance and granted defendant’s motion to strike. Afterplaintiffs rested, defendant moved to dismiss the complaint basedupon plaintiffs’ failure to prove a prima facie case due to theabsence of expert testimony. Supreme Court granted the motionand a judgment was subsequently entered thereon. Plaintiffs nowappeal. We reverse.Whether to grant a continuance rests in the sounddiscretion of the court (see Matter of Anthony M., 63 NY2d 270,283 [1984]; Stone v Hidle, 266 AD2d 705, 706 [1999]) and, absentan abuse of such discretion, the court’s determination will notbe disturbed (see Gutin-Nedo v Marshall, Cheung & Diamond, 301AD2d 728, 729 [2003]; Gombas v Roberts, 104 AD2d 521, 522[1984]). “[I]t is an abuse of the court’s discretion to deny acontinuance where the application complies with every requirementof the law and is not made merely for delay, where the evidenceis material and where the need for a continuance does not resultfrom the failure to exercise due diligence” (Cirino v St. John,146 AD2d 912, 913 [1989] [internal quotation marks and citationomitted]; see Black v St. Luke’s Cornwall Hosp., 112 AD3d 661,661 [2013]; Brusco v Davis-Klages, 302 AD2d 674, 674 [2003]).We conclude that plaintiffs’ motion for a continuanceshould have been granted (see Stevens v Auburn Mem. Hosp., 286AD2d 965, 966 [2001]; Cirino v St. John, 146 AD2d at 914). Therecord does not support Supreme Court’s finding that the failureof plaintiffs’ expert to appear and complete his testimony onDecember 2, 2016 stemmed from a lack of due diligence byplaintiffs (see Brusco v Davis-Klages, 302 AD2d at 674-675;compare McKenna v Connors, 36 AD3d 1062, 1064 [2007], lvdismissed and denied 8 NY3d 969 [2007]). Furthermore, theexpert’s testimony was material, plaintiffs requested only abrief adjournment, the court had allotted two weeks for trial andthe continuance request was not made for the purpose of delay.Accordingly, Supreme Court abused its discretion in denyingplaintiffs’ request for a continuance (see Zysk v Bley, 24 AD3d757, 758 [2005]; Mura v Gordon, 252 AD2d 485, 485 [1998]; Hoffnerv County of Putnam, 167 AD2d 755, 756 [1990]; Gombas v Roberts,104 AD2d at 522). To that end, defendant’s motions to strike theexpert testimony and to dismiss the complaint based uponplaintiffs’ failure to prove a prima facie case should have beendenied. In view of our determination, the parties’ remainingcontentions are academic.-4- 524845McCarthy, J.P., Egan Jr., Rumsey and Pritzker, JJ., concur.ORDERED that the judgment is reversed, on the law, withcosts, and matter remitted to the Supreme Court for a new trial.ENTER:Robert D. MaybergerClerk of the Court
