Brito v. Giuffre

73 Misc. 3d 143(A), 2021 NY Slip Op 51218(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 20, 2021
• Docket: 570183/21
• Status: Unpublished

Opinion

Brito v Giuffre (2021 NY Slip Op 51218(U)) [*1]

Brito v Giuffre

2021 NY Slip Op 51218(U) [73 Misc 3d 143(A)]

Decided on December 20, 2021

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2021

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Hagler, Silvera, JJ.
570183/21

Miguel Brito, Plaintiff-Appellant,

against

Joseph A. Giuffre, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Marissa Soto, J.), entered on or about January 14, 2020, at a bifurcated jury trial on the issue of damages, which granted defendant's motion to dismiss the complaint.

Per Curiam.

Order (Marissa Soto, J.), entered on or about January 14, 2020, reversed, with $10 costs, defendant's motion denied, the complaint reinstated and the matter remanded for a new trial on damages.

Following a determination of liability against defendant and at the damages phase of this personal injury action, the trial court improvidently exercised its discretion in denying plaintiff a two-day continuance to bring in his only expert doctor and granting defendant's motion to dismiss the complaint. The request for a continuance was not made merely for the purpose of delay, the testimony of plaintiff's expert was material to the issue of damages, and the need for a continuance did not result from any lack of due diligence on the part of plaintiff's counsel (see Black v St. Luke's Cornwall Hosp., 112 AD3d 661 [2013]; Guzman v 4030 Bronx Blvd. Assoc. L.L.C., 54 AD3d 42, 52 [2008]). Accordingly, plaintiff is entitled to a new trial on the issue of damages (see Freeman v Shtogaj, 174 AD3d 448, 449 [2019]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 20, 2021