Opinion
August 14, 1995
Appeal from the Supreme Court, Suffolk County (Fierro, J.).
Ordered that the order and judgment is reversed, as a matter of discretion, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings before a different Justice.
In this matrimonial action, the plaintiff wife, who resides in Florida, appeared by counsel on the date which the Supreme Court had scheduled for trial. The Supreme Court, sua sponte, dismissed the complaint for failure to prosecute, despite the representations of the wife's attorney that the plaintiff had not appeared personally because the attorney believed the matter to be scheduled for conference only.
We find no merit to the husband's argument that the appeal must be dismissed. Even assuming that the judgment was entered on the wife's default (see, CPLR 5511), the wife appeared by counsel to contest the matter which is the subject of this appeal. The issue raised by the wife is therefore reviewable on this appeal (see, Katz v. Katz, 68 A.D.2d 536, 540-542; cf., Kelly v. Long Is. Coll. Hosp., 199 A.D.2d 244).
As to the merits of the appeal, we conclude that the Supreme Court erred in dismissing the complaint. The matter had previously been adjourned several times at the husband's request, and the application by the wife's counsel was her first request for an adjournment. The wife's counsel's request for a brief adjournment to allow the wife to travel to New York was reasonable, particularly because the record indicates that counsel for the husband intended to ask to be relieved and was not prepared to go to trial that day in any event. Under the circumstances, the Supreme Court improvidently exercised its discretion by dismissing the complaint rather than granting the wife's counsel's request for an adjournment (see, Klein v. New York Tel. Co., 155 A.D.2d 644; see also, Edelstein v Friedlander, 167 A.D.2d 500). Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.