Motion to Continue (Adjourn)

• Pages: 305-336
• Author: Carl T. Grasso,Edward L. Birnbaum,Ariel E. Belen

MOTIONS TO

CONTINUE

9-1

CHAPTER 9

MOTION TO CONTINUE (ADJOURN)

I. PURPOSE AND PROCEDURE

A. General Points

§9:01 Purpose

§9:02 Authority

§9:03 Potential Grounds

§9:04 Making the Motion

§9:05 Opposing the Motion

B. Ruling on Motion

§9:10 Motion Addressed to Court’s Discretion

§9:11 Factors Considered

§9:12 Dismissal for Failure to Appear

II. GROUNDS

A. Scheduling Problems for Counsel and Court

1. Engagement of Counsel in Another Court

§9:20 Governing Rule

§9:21 Priority

§9:22 Exceptional Circumstances

§9:23 Counsel’s Affirmation of Engagement

§9:24 Rejection of Valid Affirmation Is Abuse of Discretion

§9:25 Scope of Further Inquiry

§9:26 When Firm Has More Than One Trial Attorney

§9:27 Trial Date Set at Least Two Months in Advance

2. Other Scheduling Problems Regarding Counsel

§9:40 Counsel in State Legislature

§9:41 Counsel’s Illness and Death: Interplay With CPLR 321(c)

§9:42 Counsel’s Failure to Appear Is No Excuse

§9:43 Exception: Exceptional Rights at Stake

3. Court’s Schedule

§9:50 Court’s Schedule May Be Considered

B. Withdrawal or Discharge of Counsel

§9:60 Withdrawal of Counsel

§9:61 Discharge of Counsel

§9:62 Counsel Discharged to Be a Witness

C. Unavailability of Parties and Witnesses

§9:70 Party Unavailable

§9:71 Witnesses Unavailable

MOTIONS TO

CONTINUE

New York Trial Notebook 9-2

D. Case Not Ready for Trial

§9:80 New Elements in Trial (Surprise)

§9:81 Counsel’s Lack of Preparation Is No Excuse

§9:82 Exception: Exceptional Rights at Stake

§9:83 Discovery Not Completed

E. Other Grounds

§9:90 Publicity

§9:91 Omnibus Reasons

§9:92 Expert Precluded

§9:93 Motion to Stay Trial

FORMS

Form 9:10 Notice of Motion for an Adjournment

Form 9:20 Affirmation of Engagement in Support of Motion for an Adjournment

Form 9:30 Affirmation of Party’s Unavailability in Support of Motion for an Adjournment

Form 9:40 Affirmation of Witness’ Unavailability in Support of Motion for an Adjournment

MOTIONS TO

CONTINUE

9-3 Motion to Continue (Adjourn) §9:03

I. PURPOSE AND PROCEDURE

A. General Points

§9:01 Purpose

A motion to adjourn or continue (the terms are used interchangeably) typically seeks to postpone the date for the

trial to start and usually asks for only a short delay. If a longer or indenite time is sought, the motion should be to

strike the case from the trial calendar. [See Fox v. Wyeth Laboratories, Inc., 135 AD2d 487, 521 NYS2d 728 (2d Dept

1987) (upheld plainti’s motion to strike case from trial calendar after sudden deaths of two partners in plainti’s law

rm).] Motions to adjourn or continue made during trial are discussed in Chapter 37, §37:20 et seq.

CAUTION:

Take care not to mistake a motion to “continue” for a motion to “discontinue.” [See Ch 10.]

§9:02 Authority

No specic provision in the CPLR or the Uniform Rules deals with adjourning a trial date before trial has

started (although CPLR 321(c) provides for an automatic stay of all proceedings, including a trial, if a party’s

attorney becomes disabled before judgment). [See §9:41.] Courts, however, have inherent docket control authority

to adjourn a trial date. “[A]n application for a continuance or adjournment is addressed to the sound discretion

of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently

exercised its discretion.” [MRI Enterprises, Inc. v. Comprehensive Medical Care of New York, P.C., 122 AD3d

595, 596, 996 NYS2d 119, 120 (2d Dept 2014).]

In addition, CPLR 4402, which allows the grant of a continuance during trial in the interest of justice, is

sometimes cited as authority for adjourning a case before the trial actually starts. [See Blunt v. Northern Oneida

County Landll (NOCO), 145 AD2d 913, 536 NYS2d 295 (4th Dept 1988) (trial court erred in refusing to grant a

reasonable adjournment for plainti’s to obtain new counsel after their counsel withdrew; grant of adjournment “in

these circumstances was essential to the interests of justice”); Englert v. Hart, 112 AD2d 3, 490 NYS2d 473 (4th

Dept 1985) (improvident exercise of discretion to deny continuance where diligent eorts were made to arrange

for plainti’s presence at trial, but plainti could not be present due to documented medical reasons).]

NOTE:

It should go without saying that the party wishing a continuance should make a motion. Mere messages to

the court relating alleged problems are not sufcient. In 1032-1034 Lexington Ave., Ltd. V. Rogers, 194 AD3d

461, 143 NYS3d 541 (1st Dept 2021), the motion court did not abuse its discretion in refusing to vacate the

defendant’s repeated defaults in appearing for trial. Following the adjournments of the pretrial conferences at

which the defendant failed to appear, the matter was set down for trial on March 21, 2018. The defendant failed

to appear for trial due to a snowstorm on that date, and the matter was set down for trial on April 11, 2018 and

marked nal. The defendant again failed to appear, sending a message to the motion court through her business

manager on the day of trial that she was too ill to attend. Given the defendant’s failure to make arrangements

to appear on the trial date, either in person or through counsel, in the three weeks following her March 21,

2018 failure to attend, the motion court providently determined that her unsupported excuse for defaulting was

unreasonable. (In view of the defendant’s prior behavior and defaults, it is possible that the trial court would

have been within its discretion to dismiss the case even if the defendant had made a motion; see §9:10, et seq.).

[For requesting a continuance after trial has begun, see Ch 37.]

§9:03 Potential Grounds

The CPLR does not specify the grounds on which a continuance may be sought. [But see discussion of CPLR

321(c) in §9:41.] Possible grounds recognized by court rule and case law include:

1. Counsel is engaged in another court. [See §9:20 .]

2. Counsel is a member of the state legislature and the legislature is in session. [See §9:40.]