BRITO v. GIUFFRE (2021)

Supreme Court, Appellate Term, New York,

Miguel BRITO, Plaintiff-Appellant, v. Joseph A. GIUFFRE, Defendant-Respondent.

570183 /21

Decided: December 20, 2021

PRESENT: Edmead, P.J., Hagler, Silvera, JJ.

Order (Marissa Soto, J.), entered on or about January 14, 2020, reversed, with $10 costs, defendant's motion denied, the complaint reinstated and the matter remanded for a new trial on damages.

Following a determination of liability against defendant and at the damages phase of this personal injury action, the trial court improvidently exercised its discretion in denying plaintiff a two-day continuance to bring in his only expert doctor and granting defendant's motion to dismiss the complaint. The request for a continuance was not made merely for the purpose of delay, the testimony of plaintiff's expert was material to the issue of damages, and the need for a continuance did not result from any lack of due diligence on the part of plaintiff's counsel (see Black v St. Luke's Cornwall Hosp., 112 AD3d 661 [2013]; Guzman v 4030 Bronx Blvd. Assoc. L.L.C., 54 AD3d 42, 52 [2008]). Accordingly, plaintiff is entitled to a new trial on the issue of damages (see Freeman v Shtogaj, 174 AD3d 448, 449 [2019]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.

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