Motion to Continue (Adjourn)

• Author: Edward L. Birnbaum/Carl T. Grasso/Justice Ariel E. Belen
• Pages: 275-304

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