Opinion
November 30, 1989
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
Clearly, the IAS court has the authority to direct a bifurcated trial "[i]n furtherance of convenience". (CPLR 603; County of Chenango Indus. Dev. Agency v Lockwood Greene Engrs., 111 A.D.2d 508, 509.) An examination of the circumstances of this case, however, persuades us that the sanction of dismissal was so drastic as to constitute an abuse of discretion and, therefore, require reversal. (See, Balogh v H.R.B. Caterers, 88 A.D.2d 136, 141.)
We note, for example, that plaintiff was ready to proceed to trial on 13 prior court dates between 1983 and March 1989, and that defendant was granted adjournments on each of those occasions, even after "final" markings. The record also establishes that the court's direction to bifurcate accorded extremely short notice to the plaintiff, who had developed her trial strategy and picked a jury with the expectation of a single trial covering damages as well as liability. Finally, we take into account the fact that plaintiff's need for a short continuance was occasioned by the unavailability of her medical witness, a circumstance over which plaintiff had no control, and that defendant neither objected to a continuance nor moved to dismiss when the problem arose. (See, Balogh v H.R.B. Caterers, supra.)
Concur — Ross, J.P., Carro, Asch, Kassal and Smith, JJ.