LILA v. BATA (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Huttner, J.), entered June 29, 2005, which is in favor of the defendants and against her dismissing the complaint.

ORDERED that the judgment is reversed, on the law and in the exercise of discretion, the complaint is reinstated, and the matter is remitted to the Supreme Court, Queens County, for a trial on the issue of damages, with costs to abide the event.

The Supreme Court improvidently exercised its discretion in denying the plaintiff's application for a brief continuance of the trial on the issue of damages due to the unavailability of her expert doctor.   The expert's testimony was material and there is no indication in the record that the request for a continuance was made for the purpose of delay, or that the need for a continuance resulted from the plaintiff's failure to exercise due diligence (see Zysk v. Bley, 24 A.D.3d 757, 758, 806 N.Y.S.2d 705;  Hodges v. City of New York, 22 A.D.3d 525, 526-527, 801 N.Y.S.2d 767;  Byrnes v. Varlack, 17 A.D.3d 616, 616-617, 794 N.Y.S.2d 81;  Wai Ming Ng v. Tow, 260 A.D.2d 574, 574, 688 N.Y.S.2d 647;  Romero v. City of New York, 260 A.D.2d 461, 461-462, 688 N.Y.S.2d 226).