Feuerstein v Tirico (2006 NY Slip Op 52032(U))

Feuerstein v Tirico

2006 NY Slip Op 52032(U) [13 Misc 3d 135(A)]

Decided on October 5, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.

Carol Feuerstein, Appellant,

against

Donald Tirico, Respondent.

Appeal from a judgment of the District Court of Nassau County, First District (Martin J. Massell, J.), entered October 24, 2005. The judgment dismissed the action with prejudice, upon plaintiff's failure to proceed to trial.

Notwithstanding that the judgment was entered upon plaintiff's default, i.e., upon her refusal to proceed to trial (see Brown v Data Communications, 236 AD2d 499 [1997]), since plaintiff seeks review of the court's denial of her application for an adjournment of the trial, a matter which was "the subject of contest below" (James v Powell, 19 NY2d 249, 256 n 3 [1967]), the judgment is reviewable.

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]), and the court's determination will not be disturbed absent an improvident exercise of that discretion (see Wolosin v Campo, 265 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists]). We find that, under the circumstances of this small claims case, the court below did not improvidently exercise its discretion in denying plaintiff's application for an adjournment of the trial. At the parties' prior court appearance four months earlier, the case was adjourned for trial in order for plaintiff to procure an expert witness, and was marked final against plaintiff. For the trial court to have granted this self-represented plaintiff's request for an additional adjournment so that she may secure counsel not only would have unduly delayed the trial but also would have inconvenienced defendant and his counsel, as well as plaintiff's subpoenaed nonparty witness and his counsel, [*2]
who were ready to proceed on the scheduled trial date (see Brown v Data Communications, 236 AD2d 499, supra; Zeitlin v Merrick Bay Park, 56 Misc 2d 1039 [App Term, 2d Dept 1968]).