North East Appraisals v. Fink

ts. Appeal from a judgment of the Supreme Court, in favor of plaintiff, entered August 3, 1979 in Tompkins County, upon a decision of the court at a Trial Term, without a jury. This is an action by plaintiff to recover brokerage fees for allegedly bringing about the sale of defendant’s property. The court, after a trial without a jury, found in favor of plaintiff. This appeal ensued, and initially defendants contend that the court erred in refusing to grant an adjournment and requiring them to proceed to trial without counsel. The case was reached for trial on August 2, 1979. The record reveals that the case was marked ready at the opening day of the term on July 30, 1979. Presumably, the case was so marked by the plaintiff. The court had difficulty in contacting the attorney of record for the defendants, but finally succeeded that evening or the next morning, and the attorney stated that some weeks ago he advised his clients he could no longer represent them as he had accepted a position with New York State. It also appears from the record that defendant Harvey Fink was not aware that a trial date had been set until 9:00 a.m. on August 1, 1979; that the former attorney had not forwarded the file by this date; and that the new 673 attorney told defendant Harvey Fink to appear in court and request an adjournment. While the granting of an adjournment is within the discretion of the Trial Judge, we are of the view that the denial here constituted an abuse of discretion. The defendants were without the services of the attorney of record through no fault of their own. The new attorney had very short notice. Considering the record in its entirety, the defendants should not be penalized because of the possible neglect of either or both of their attorneys. Consequently, in our opinion, there should be a reversal and defendants afforded their day in court with representation by counsel. We pass on no other issues. Judgment reversed, on the law and the facts, without costs. Sweeney, Main and Mikoll, JJ., concur.