Insl-X Products Corp. v. F & K Supply, Inc.

228 A.D.2d 478, 643 N.Y.2d 1018, 643 N.Y.S.2d 1018, 1996 N.Y. App. Div. LEXIS 6597

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1996
• Status: Published

Opinion

The plaintiff, Insl-X Products Corp., was a manufacturer and seller of paints and coatings. The defendant, F & K Supply, Inc., was a building materials supplier. In 1992, the defendant ordered goods from the plaintiff which, by the terms of their agreement, were to be paid for over the course of seven months. The defendant did not make the payments to the plaintiff.

Thereafter, the plaintiff instituted this action to recover payment for the goods delivered. A trial was held which resulted in a verdict in favor of the plaintiff. On appeal, the defendant argues that the Supreme Court erred in not granting its motion to preclude the plaintiff from introducing certain evidence at trial and in not granting the defendant a continuance to review documents and to produce a witness.

It was not an improvident exercise of discretion for the Supreme Court to refuse to preclude the plaintiff from introducing certain evidence at trial (see, e.g., Coloccia v Coloccia, 222 AD2d 643).

Moreover, on this record, it was not an improvident exercise of discretion for the Supreme Court to deny the defendant a continuance because certain documents were produced just before the trial and because of the unavailability of its controller. In the absence of an improvident exercise of discretion, the denial of a motion for a continuance will be upheld on appeal (see, e.g., Dunleavy v Samuel, 177 AD2d 540; Balogh v H.R.B. Caterers, 88 AD2d 136). The trial court is vested with this discretion because it is in the best position to determine whether a continuance is essential in the interest of justice (see, e.g., Michaels v Dalimonte, 121 AD2d 370). Miller, J. P., Ritter, Krausman and McGinity, JJ., concur.