Opinion
2003-03647.
Decided April 19, 2004.
In an action to recover damages for personal injuries, the plaintiff Danny Postell appeals from a judgment of the Supreme Court, Queens County (Huttner, J.), entered March 11, 2004, which dismissed the complaint insofar as asserted by him. The plaintiff's notice of appeal from an order of the same court dated April 2, 2003, is deemed a premature notice of appeal from the judgment ( see CPLR 5520[c]).
Yankowitz Law Firm, P.C., Great Neck, N.Y. (Christopher P. Gladd of counsel), for appellant.
Robert P. Tusa (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for respondent John Williams.
Before: A. GAIL PRUDENTI, P.J., ANITA R. FLORIO, BARRY A. COZIER, JJ., HOWARD MILLER, ROBERT W. SCHMIDT.
DECISION ORDER
ORDERED that the judgment is reversed, without costs or disbursements, the complaint insofar as asserted by the appellant is reinstated, and the matter is remitted to Supreme Court, Queens County, for trial.
The Supreme Court denied the appellant's request for a brief continuance due to the unavailability of his medical witness, and dismissed the action insofar as asserted by him prior to the commencement of the liability phase of the trial. This was an improvident exercise of discretion, since the testimony of the appellant's medical witness was material and the request for a brief continuance was not made for the purpose of delay ( see Romero v. City of New York, 260 A.D.2d 461; Evangelinos v. Reifschneider, 241 A.D.2d 508; Goichberg v. Sotudeh, 187 A.D.2d 700) . Accordingly, we reverse, reinstate the complaint insofar as asserted by the appellant, and remit the matter to the Supreme Court, Queens County, for trial.
In light of our determination, the appellant's remaining contention has been rendered academic.
PRUDENTI, P.J., FLORIO, H. MILLER, SCHMIDT and COZIER, JJ., concur.