Opinion
September 21, 1998
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the judgment is affirmed, with costs.
The plaintiff Dorothy Herbert was injured when she slipped and fell inside the defendant's supermarket. After a jury trial on the issue of liability, the defendant was found to be 75% at fault in the happening of the accident and Ms. Herbert 25% at fault. Thereafter, a trial on the issue of damages was conducted during which the defendant made a last-minute request to adjourn the case so that he might attempt to secure the testimony of Ms. Herbert's private physician, Dr. Luigi Capobianco. The defendant's sole contention on appeal is that the court acted improvidently in denying the adjournment application.
As a general rule, the granting or refusing of a continuance is within the sound discretion of the trial court ( Balogh v. H.R.B. Caterers, 88 A.D.2d 136, 143). The record indicates that the defendant failed to exercise due diligence in obtaining the testimony on Dr. Capobianco. Although the defendant had notice more than a year before trial that Dr. Capobianco was Ms. Herbert's private physician, the defendant took no steps until the trial on the issue of damages to subpoena Dr. Capobianco's records or to secure his presence at the trial. Accordingly, we cannot conclude that the court's refusal to adjourn the trial on the issue of damages was an improvident exercise of discretion ( see, Zavurov v. City of New York, 241 A.D.2d 491; Paulino v. Marchelletta, 216 A.D.2d 446; Rogers v. Corbin, 204 A.D.2d 616; Matter of Housing Dev. Fund Co. of Carpenters Joiners v. County of Rockland, 134 A.D.2d 594; Vogelhut v. Waldbaum's Supermarket, 127 A.D.2d 590).
O'Brien, J. P., Sullivan, Joy and Friedmann, JJ., concur.