Appeal from a judgment of the District Court of Nassau County, First District (Randy Sue Marber, J.), entered September 14, 2006. The judgment dismissed the action with prejudice upon plaintiff's failure to proceed to trial.

Judgment reversed without costs and matter remanded to the court below for a trial.

Plaintiff's refusal to proceed to trial in this small claims action resulted in a judgment entered on default (Feuerstein v Tirico, 13 Misc 3d 135[A], 2006 NY Slip Op 52032[U] [App Term, 9th & 10th Jud Dists]; see also Brown v Data Communications, 236 AD2d 499 [1997]). The judgment is nonetheless reviewable because 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]; Feuerstein v Tirico, 13 Misc 3d 135[A], 2006 NY Slip Op 52032[U], supra).

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]), however the court's determination will be disturbed upon an improvident exercise of that discretion (cf. 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]).

In our view, an adjournment was warranted under the circumstances presented. A trial is [*2]required in order to achieve substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1807). Accordingly, we do not reach plaintiff's second argument on appeal.

Rudolph, P.J., McCabe and Molia, JJ., concur.
Decision Date: September 28, 2007