Englert v. Hart

Appellate Division of the Supreme Court of New York

Englert v. Hart

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 4, 1985

StatusPublished

Cited by3 cases

This text of 112 A.D.2d 3 (Englert v. Hart) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Englert v. Hart, 112 A.D.2d 3, 490 N.Y.S.2d 473, 1985 N.Y. App. Div. LEXIS 50626 (N.Y. Ct. App. 1985).

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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, [4]*4Balogh 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.

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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, [4]*4Balogh 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.

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Bluebook (online)

112 A.D.2d 3, 490 N.Y.S.2d 473, 1985 N.Y. App. Div. LEXIS 50626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/englert-v-hart-nyappdiv-1985.

Opinion

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