Steinbach v. Donnelli

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Donovan, J.), dated November 13, 1986, which, upon granting the defendant’s motion for judgment during trial (CPLR 4401), is in favor of the defendant and against them. Ordered that the judgment is reversed, in the exercise of discretion, with costs, and a new trial is granted. After denying the plaintiffs’ application for a brief continuance, the trial court granted the defendant’s motion for judgment during trial (CPLR 4401) based upon its determination that the plaintiffs had failed to prove a prima facie case. The judgment which was thereafter entered is, contrary to the defendant’s contention, appealable as of right, and the plaintiffs’ appeal brings up for review the court’s ruling denying the application for a continuance (CPLR 5701 [a] [1], [3]). Considering all the circumstances, we are of the opinion that the trial court improvidently exercised its discretion in denying the plaintiffs’ request for a continuance (see generally, Sutter v Nelson, 126 AD2d 634, 635; Matter of Allstate Ins. Co. v Bologna, 114 AD2d 796; Cuevas v Cuevas, 110 AD2d 873). The matter is therefore remitted to the Supreme Court, Westchester County, for a new trial. Bracken, J. P., Brown, Weinstein and Rubin, JJ., concur.