Opinion
2014-03659, Index No. 5592/12.
04-15-2015
Laverne HAWES, etc., et al., respondents, v. Yasser LEWIS, et al., appellants, et al., defendant.
Levy & Nau, P.C., Brooklyn, N.Y. (Roger A. Levy of counsel), for appellants. Solomon E. Antar, Brooklyn, N.Y. (Leopold Gross of counsel), for respondents.
Levy & Nau, P.C., Brooklyn, N.Y. (Roger A. Levy of counsel), for appellants.
Solomon E. Antar, Brooklyn, N.Y. (Leopold Gross of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and HECTOR D. LaSALLE, JJ.
Opinion In an action, inter alia, to cancel a deed and to set aside a conveyance of certain real property, the defendants Yasser Lewis, Basheer Jameel Lewis, Fulton Brothers Realty, LLC, and 1289 Fulton Street, LLC, appeal from an order of the Supreme Court, Kings County (Baily–Schifman, J.), dated February 21, 2014, which, upon the denial of their request for an adjournment to obtain new counsel, inter alia, granted the plaintiffs' unopposed motion to strike their answers, and thereupon set the matter down for an inquest on the issue of damages.
ORDERED that the appeal is dismissed except insofar as it brings up for review the denial of the appellants' request for an adjournment (see CPLR 5511 ; Katz v. Katz, 68 A.D.2d 536, 540–542, 418 N.Y.S.2d 99 ); and it is further,
ORDERED that the order is affirmed insofar as reviewed, with costs. Where, as here, the order appealed from was made upon the appellants' default, “review is limited to matters which were the subject of contest below” (Matter of Constance P. v. Avraam G., 27 A.D.3d 754, 755, 813 N.Y.S.2d 463 ; see James v. Powell, 19 N.Y.2d 249, 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 ; Diamond v. Diamante, 57 A.D.3d 826, 827, 869 N.Y.S.2d 609 ). Accordingly, in this case, review is limited to the denial of the appellants' request for an adjournment (see Matter of Sacks v. Abraham, 114 A.D.3d 799, 800, 980 N.Y.S.2d 525 ; Diamond v. Diamante, 57 A.D.3d at 827, 869 N.Y.S.2d 609 ; Tun v. Aw, 10 A.D.3d 651, 652, 782 N.Y.S.2d 96 ).
The granting of an adjournment for any purpose rests within the sound discretion of the court (see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 ; Dune Deck Owners Corp. v. J.J. & P. Assoc. Corp., 85 A.D.3d 1091, 926 N.Y.S.2d 317, 318 ; Diamond v. Diamante, 57 A.D.3d at 827, 869 N.Y.S.2d 609 ), and its determination will not be disturbed absent an improvident exercise of that discretion (see Diamond v. Diamante, 57 A.D.3d at 827, 869 N.Y.S.2d 609 ; Davidson v. Davidson, 54 A.D.3d 988, 863 N.Y.S.2d 923 ). In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding (see Diamond v. Diamante, 57 A.D.3d at 827, 869 N.Y.S.2d 609 ).
Applying these principles here, the Supreme Court did not improvidently exercise its discretion in denying the appellants' request for an adjournment to obtain new counsel after their second counsel was relieved, as second counsel requested that the appellants permit it to be relieved of the obligation of representation, based on the appellants' lack of cooperation with second counsel, and the appellants thereupon voluntarily consented to second counsel's request (see Sarlo–Pinzur v. Pinzur, 59 A.D.3d 607, 608, 874 N.Y.S.2d 499 ; Graco Constr. Corp. v. Eves, 232 A.D.2d 370, 371, 648 N.Y.S.2d 322 ).
The appellants' remaining contentions are not properly before this Court.