HERBERT v. EDWARDS SUPER FOOD STORES FINAST SUPERMARKETS INC

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

Dorothy HERBERT, et al., Respondents, v. EDWARDS SUPER FOOD STORES-FINAST SUPERMARKETS, INC., Appellant.

Decided: September 21, 1998

Before O'BRIEN, J.P., and SULLIVAN, JOY and FRIEDMANN, JJ. Fixler & Gulino, LLP, New York City (Frank Gulino, of counsel), for appellant. Joel S. Kaplan, Garden City (Michael Lowe, of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Nassau County (Levitt, J.), entered September 12, 1997, which, upon a jury verdict finding it 75% at fault in the happening of the accident and the plaintiff Dorothy Herbert 25% at fault and finding that the plaintiff Dorothy Herbert suffered total damages in the amount of $300,000 and the plaintiff William Herbert suffered total damages in the amount of $25,000, is against it and in favor of the plaintiff Dorothy Herbert in the principal sum of $225,000 and the plaintiff William Herbert in the principal sum of $18,750.

ORDERED that the judgment is affirmed, with costs.

 The plaintiff Dorothy Herbert was injured when she slipped and fell inside the defendant's supermarket.   After a jury trial on the issue of liability, the defendant was found to be 75% at fault in the happening of the accident and Ms. Herbert 25% at fault.   Thereafter, a trial on the issue of damages was conducted during which the defendant made a last-minute request to adjourn the case so that he might attempt to secure the testimony of Ms. Herbert's private physician, Dr. Luigi Capobianco.   The defendant's sole contention on appeal is that the court acted improvidently in denying the adjournment application.

 As a general rule, the granting or refusing of a continuance is within the sound discretion of the trial court (Balogh v. H.R.B. Caterers, Inc., 88 A.D.2d 136, 143, 452 N.Y.S.2d 220).   The record indicates that the defendant failed to exercise due diligence in obtaining the testimony of Dr. Capobianco.   Although the defendant had notice more than a year before trial that Dr. Capobianco was Ms. Herbert's private physician, the defendant took no steps until the trial on the issue of damages to subpoena Dr. Capobianco's records or to secure his presence at the trial.   Accordingly, we cannot conclude that the court's refusal to adjourn the trial on the issue of damages was an improvident exercise of discretion (see, Zavurov v. City of New York, 241 A.D.2d 491, 659 N.Y.S.2d 897;  Paulino v. Marchelletta, 216 A.D.2d 446, 628 N.Y.S.2d 541;  Rogers v. Corbin, 204 A.D.2d 616, 614 N.Y.S.2d 233;  Matter of Housing Dev. Fund Co. of Carpenters & Joiners, Local 964, of Ramapo v. County of Rockland, 134 A.D.2d 594, 521 N.Y.S.2d 493;  Vogelhut v. Waldbaum's Supermarket, 127 A.D.2d 590, 511 N.Y.S.2d 647).

MEMORANDUM BY THE COURT.

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