Opinion
(1723) CA 01-00072
December 21, 2001.
(Appeal from Order of Supreme Court, Oneida County, Grow, J. — Negligence.)
PRESENT: GREEN, J.P., KEHOE, BURNS, GORSKI AND LAWTON, JJ.
Order unanimously reversed on the law without costs, complaint reinstated and new trial granted in accordance with the following Memorandum:
Supreme Court abused its discretion in denying the request of plaintiff for a one-day continuance to allow its expert witness to testify ( see, Stevens v. Auburn Mem. Hosp., 286 A.D.2d 965; Halloran v. Spina Floor Covering, 185 A.D.2d 149; Cirino v. St. John, 146 A.D.2d 912, 913). In addition, the court erred in sua sponte dismissing the complaint before plaintiff rested its case ( see, McGhee v. New York City Hous. Auth., 243 A.D.2d 544; Cass v. Broome County Co-op. Ins. Co., 94 A.D.2d 822, 823; Balogh v. H.R.B. Caterers, 88 A.D.2d 136, 141). We therefore reverse the order, reinstate the complaint and grant a new trial before a different Justice.