Brown v. Data Communications, Inc.

236 A.D.2d 499, 653 N.Y.S.2d 693, 1997 N.Y. App. Div. LEXIS 1320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 1997
• Status: Published

Opinion

—In an action, inter alia, to recover damages for wrongful discharge from employment, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Berler, J.), entered March 20, 1995, which, upon granting the defendants’ trial motion to dismiss on the plaintiff’s default in proceeding at trial, dismissed the complaint.

Ordered that the judgment is affirmed, without costs or disbursements.

It is now well settled that an appeal lies from a judgment entered upon the default of the appealing party but review is limited to matters which were the subject of contest below (see, CPLR 5511; James v Powell, 19 NY2d 249, 256, n 3; Katz v Katz, 68 AD2d 536). This appeal brings up for review the denial of the plaintiff’s motion for an adjournment to permit him to subpoena as his own witness one of the defendants who was not present in court. The plaintiff thereupon refused to proceed and the court dismissed the complaint on the defendants’ motion.

The court did not improvidently exercise its discretion in denying the plaintiff’s request for an adjournment. There were several other witnesses available to testify, and the plaintiff’s refusal to proceed with the presentation of other evidence was, under the circumstances, unreasonable. Rosenblatt, J. P., Thompson, Santucci and Altman, JJ., concur.