Englert v. Hart

112 A.D.2d 3, 490 N.Y.S.2d 473, 1985 N.Y. App. Div. LEXIS 50626

Opinion

Order and judgment unanimously reversed, on the law, without costs, and plaintiff’s motion granted. Memorandum: It was an improvident exercise of discretion for the trial court to deny plaintiff’s motion to vacate a prior order denying plaintiff’s motion for a continuance (see, CPLR 4402). The record indicates that plaintiff’s counsel made diligent efforts to arrange for plaintiff’s presence at trial but that plaintiff was unable to attend due to the reoccurrence of osteoarthritis of the cervical and lumbar spine. Plaintiff’s physician verified this condition and advised plaintiff against traveling from Florida to New York. In addition, it does not appear from the record that defendants would have been prejudiced in any substantial way by a granting of the continuance (see, O’Brien v King, 254 App Div 318). Under these circumstances, plaintiff’s application for a continuance must be granted and the order denying the application is vacated (see, Balogh v H.R.B. Caterers, 88 AD2d 136,140-141; Bruce v Hospital for Special Surgery, 34 AD2d 963, 964; cf. J.C.S. Design Assoc. v Vinnik, 85 AD2d 572). (Appeal from order and judgment of Supreme Court, Steuben County, Purple, J. — continuance.) Present — Dillon, P. J., Hancock, Jr., Callahan and Green, JJ.