Opinion
February 4, 1985
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Interim order affirmed, with costs.
The trial court did not abuse its discretion in denying defendant's motion for a continuance ( see, Balogh v H.R.B. Caterers, 88 A.D.2d 136, 143). Defendant asked for the continuance to obtain the presence of two witnesses who would offer testimony that plaintiff knew of the Mexican divorce decree earlier than she claimed. Since some of the defendant's witnesses had already so testified, the testimony would have been merely cumulative in this case. Moreover, the issue of when plaintiff learned of the decree was a collateral one and only related to her general credibility as a witness. The ultimate question was whether defendant had obtained plaintiff's signature on a power of attorney authorizing a Mexican attorney to appear on her behalf before a court in Chihuahua by fraud. The witnesses defendant sought to obtain were not said to have been present at the signing of this document, and, under the circumstances, their testimony was not crucial or important ( cf. Distribuidora Nacional De Disco v Rappaport, 92 A.D.2d 559; Chodos v Chodos, 91 A.D.2d 1030).
The trial court could, on this record, find that plaintiff had sustained her burden of proving fraud by clear and convincing evidence. Titone, J.P., Mangano, Gibbons and O'Connor, JJ., concur.