McCoy v. Woodcraft Homes Inc.

42 A.D.2d 846, 346 N.Y.S.2d 711, 1973 N.Y. App. Div. LEXIS 3621

Opinion

In an assault action to recover damages for personal injuries, defendant Mary Bénpétt appeals, as limited by her brief, from so much of a. judgment of the Siipreme Court, Queens County, entered February 2, 1973, after a nonjury trial as is against her. Judgment reversed insofar as appealed from, on the law and as a matter of discretion in the interests of justice, and, as between the parties to this appeal, action severed and new trial granted, with costs to abide the event. The questions of fact have not been considered. In our opinion, it was an improvident exercise of discretion to require appellant to proceed with the defense of the action on the first day the case appeared on the calendar for trial, without counsel, after her counsel had withdrawn, and to deny her application for a 30-day adjournment to obtain new counsel. The case had been noticed for trial for the November, 1972 Term of the court and appeared on the trial calendar on January 15, 1973. Munder, Acting P. J., Latham, Shapiro, Gulotta and Benjamin, JJ., concur.