Village of Clayville v. Stearns & Wheler Engineers & Scientists

289 A.D.2d 1053, 735 N.Y.S.2d 847, 2001 N.Y. App. Div. LEXIS 12783

Opinion

Order unanimously reversed on the law without costs, complaint reinstated and new trial granted in accordance with the following Memorandum: Supreme Court abused its discretion in denying the request of plaintiff for a one-day continuance to allow its expert witness to testify (see, Stevens v Auburn Mem. Hosp., 286 AD2d 965; Halloran v Spina Floor Covering, 185 AD2d 149; Cirino v St. John, 146 AD2d 912, 913). In addition, the court erred in sua sponte dismissing the complaint before plaintiff rested its case (see, McGhee v New York City Hous. Auth., 243 AD2d 544; Cass v Broome County Co-op. Ins. Co., 94 AD2d 822, 823; Balogh v H.R.B. Caterers, 88 AD2d 136, 141). We therefore reverse the order, reinstate the complaint and grant a new trial before a different Justice. (Appeal from Order of Supreme Court, Oneida County, Grow, J. — Negligence.) Present — Green, J. P., Kehoe, Burns, Gorski and Lawton, JJ.