Michaels v. Dalimonte

• Decision Date: 02 June 1986
• Citation: 121 A.D.2d 370,502 N.Y.S.2d 801
• Parties: Joseph MICHAELS, Appellant, v. Mario DALIMONTE, Defendant, Bruce Lorenz, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 801

502 N.Y.S.2d 801

121 A.D.2d 370

Joseph MICHAELS, Appellant, v. Mario DALIMONTE, Defendant, Bruce Lorenz, et al., Respondents.

Supreme Court, Appellate Division, Second Department.

June 2, 1986.

Robert H. Skigen, Smithtown (Charles M. Newell, of counsel), for appellant.

Devitt & Spellman, Lindenhurst (Vincent A. Malito, of counsel), for respondents.

Before MANGANO, J.P., and GIBBONS, NIEHOFF and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, inter alia, pursuant to General Obligations Law § 11-101, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered September 14, 1984, which was in favor of the defendants Bruce Lorenz and Westnick's Ltd., d/b/a/ Huntley's Bar and against him, upon the respondents' motion to dismiss the complaint as against them, made at the close of the plaintiff's case.

Judgment affirmed, with costs.

The plaintiff contends that the trial court abused its discretion in denying his motion for a one-day continuance of the trial. "The granting of a continuance is an exercise of judicial discretion upon particular facts [and as] a general rule the granting or refusing a continuance is within the sound discretion of the trial court, and in the absence of an abuse of discretion, will be upheld on appellate review" (Balogh v. H.R.B. Caterers, 88 A.D.2d 136, 143, 452 N.Y.S.2d 220). Based upon the facts before us, we find no basis to disturb the trial court's exercise of discretion. "A Trial Judge observes the case and knows the surrounding facts and circumstances; hence, he is in a better position than an appellate court * * * to determine whether the design of a party making a motion for a continuance is delay, or whether a continuance is essential to the interests of justice" (Balogh v. H.R.B. Caterers, supra, at p. 143, 452 N.Y.S.2d 220).

We conclude that it was not an abuse of discretion to deny the plaintiff's application for a continuance to enable him to produce as a witness the defendant Dalimonte, who defaulted in appearing in the action. The plaintiff, in support of his application for a continuance, could only speculate as to what Dalimonte's testimony would be.