Salaberrios v. City of New York

24 A.D.2d 957, 265 N.Y.S.2d 518, 1965 N.Y. App. Div. LEXIS 2697

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1965
• Status: Published

Opinions

Appeal from an order of the Supreme Court at Trial Term, entered October 28, 1964 in Bronx County, which denied a motion by plaintiff for an order to vacate the dismissal of the action and to restore the action to the Jury Calendar.

Memorandum by the Court.

Order entered on October 28, 1964, dismissing complaint affirmed, with $30 costs and disbursements to the respondents. This case was assigned out for trial from the calendar part. There were three cases in the trial part at the time of assignment, in one of which plaintiff’s counsel was also trial counsel for the plaintiff. He knew he would be unable to proceed in that other ease. The two remaining cases were disposed of without trial and the instant case was called by the Trial Judge. Counsel informed the court that he was not ready due to the fact that he had just learned the night before that he would be unable to proceed in the other case and, expecting up to that time to be engaged in that case, had not gotten ready in this ease. The trial court, giving plaintiff the benefit of the doubt, ruled that this was a circumstance that had arisen since the assignment and allowed him to make an application for adjournment in the calendar part. The Calendar Judge, it is asserted, not only refused to grant the application but even to hear it. He was returned to the trial part, where he renewed the application, asking for a two-day adjournment. The trial court correctly ruled that he lacked discretion to grant a two-day adjournment, but allowed counsel until the afternoon session, at which time he was to pick a jury and open. This offer was refused. The court then dismissed the complaint. There are no minutes of the application made in the calendar part, and we have only counsel’s averment that he was not given a hearing. This was, of course, an impropriety even if all that was involved was discourtesy, and we do not approve it. But it was incumbent on plaintiff to show that he would have advanced some reason why he should have been given an adjournment, and this he failed completely to do. Both eases in which counsel was involved were of the simplest nature and the minimal preparation required should have been done long since. No reason was even suggested as to why this case should not have been ready in the time granted. The sympathetic approach to the problem, based on the contention that a two-day adjournment in one ease would make no particular difference, is misleading. The calendar rules are designed to deal with the problem of congestion and to reduce delays to a tolerable point. If they are to be disregarded and exceptions are to become the rule, the problem becomes insoluble. That is not to say that there is no case in which the circumstances do not dictate an exception, but this not such a case.