HARPER v. HAN CHANG

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Supreme Court, Appellate Division, Fourth Department, New York.

Nancy M. HARPER and William Harper, Plaintiffs-Appellants, v. Dr. HAN CHANG, Defendant-Respondent.

Decided: December 30, 1999

PRESENT:  PINE, J.P., WISNER, HURLBUTT and BALIO, JJ. Gerald T. Walsh, Buffalo, for plaintiffs. Jeffrey C. Sendziak, Buffalo, for defendant-respondent.

 Supreme Court did not abuse its discretion in denying plaintiffs' cross motion for an adjournment and dismissing the complaint (see, Herbert v. Edwards Super Food Stores-Finast Supermarkets, 253 A.D.2d 789, 677 N.Y.S.2d 617;  Paulino v. Marchelletta, 216 A.D.2d 446, 628 N.Y.S.2d 541).   The determination whether to adjourn a trial “is addressed to the discretion of the trial court and should not be interfered with absent a clear abuse thereof” (Blunt v. Northern Oneida County Landfill, 145 A.D.2d 913, 536 N.Y.S.2d 295).   While “[l]iberality should be exercised in granting postponements or continuances of trials to obtain material evidence and to prevent miscarriages of justice” (Balogh v. H.R.B. Caterers, 88 A.D.2d 136, 141, 452 N.Y.S.2d 220), an adjournment is properly denied where the unavailability of a witness is due to a failure to exercise due diligence (see, Herbert v. Edwards Super Food Stores-Finast Supermarkets, supra;  Paulino v. Marchelletta, supra;  Le Jeunne v. Baker, 182 A.D.2d 969, 582 N.Y.S.2d 564).   Here, the cross motion for an adjournment, made on the eve of trial of this medical malpractice action, was predicated upon the unavailability of plaintiffs' expert medical witness.   The record demonstrates, however, that plaintiffs' attorney had known for at least eight months that the medical expert, who had moved to New Mexico, would not come to New York for trial, and plaintiffs failed to exercise due diligence to remedy the unavailability of that expert.

Order unanimously affirmed without costs.

MEMORANDUM: