Opinion
November 27, 1989
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the judgment is reversed, as a matter of discretion, and a new trial is granted on the issue of damages before a different Justice, with costs.
The decision to grant a continuance is ordinarily committed to the sound discretion of the trial court (see, Matter of Housing Dev. Fund Co. v County of Rockland, 134 A.D.2d 594; Cuevas v Cuevas, 110 A.D.2d 873). In deciding such applications, the court must "indulge in a balanced consideration of all relevant factors" (Wilson v Wilson, 97 A.D.2d 897, 898). We conclude that the court's denial of a continuance of this nonjury trial for a reasonable length of time to enable the plaintiff to produce his expert witness to testify as to the reasonable value of the repairs to the plaintiff's building was an improvident exercise of discretion. Here, the plaintiff's claim has merit in light of the facts that the defendant conceded the issue of liability in the morning of the first scheduled date for trial and that photographic evidence which was admitted into evidence during the plaintiff's direct examination established the existence of damage to the plaintiff's building (see, e.g., Sutter v Nelson, 126 A.D.2d 634). The expert witness's testimony was material and necessary to the plaintiff's case (see, e.g., Bruce v Hospital for Special Surgery, 34 A.D.2d 963; Balogh v H.R.B. Caterers, 88 A.D.2d 136), and there was no allegation that the defendant would be prejudiced by a reasonable continuance aside from having incurred an additional day's attendance fees for its two witnesses. It is noteworthy that a witness who was in court pursuant to a subpoena served by defense counsel disappeared shortly after the plaintiff's attorney informed defense counsel that he would call the defendant's witness for the purpose of establishing a prima facie case. Such trial tactics will not be condoned by imposing the payment of the defense witness's fees as a condition for granting the requested continuance (cf., Rawson v Silo, 105 App. Div. 278; 4 Weinstein-Korn-Miller, N Y Civ Prac ¶ 4402.04). Although the plaintiff's attorney should have been more diligent in securing the attendance of his expert witness (see, Vogelhut v Waldbaum's Supermarket, 127 A.D.2d 590), such failure should not, under the circumstances of this case, deprive the plaintiff of his day in court (see, Gombas v Roberts, 104 A.D.2d 521; Ivor, Inc. v Hayes, 53 A.D.2d 541). Thompson, J.P., Bracken, Rubin and Spatt, JJ., concur.