Motion to Continue (Adjourn)

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 279-308

CHAPTER 9

Motion to Continue (Adjourn)

§9:01 New York Trial Notebook 9-2

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 indefinite 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 plaintiff’s motion to strike case from

trial calendar after sudden deaths of two partners in

plaintiff’s law firm).]

CAUTION:

Care should be taken that a motion to

“continue” is not mistaken for a motion to

“discontinue.” [See Ch 10.]

§9:02 Authority

No specific 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 Landfill

(NOCO), 145 AD2d 913, 536 NYS2d 295 (4th

Dept 1988) (trial court erred in refusing to grant

a reasonable adjournment for plaintiff’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 efforts were made to

arrange for plaintiff’s presence at trial, but plaintiff

could not be present due to documented medical

reasons).]

[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 ff.]

2. Counsel is a member of the state legislature

and the legislature is in session. [See §9:40.]

3. Counsel is unavailable due to illness or

death. [See §9:41.]

4. Counsel has withdrawn or been discharged.

[See §9:60 ff.]

5. A party or material witness is unavailable.

[See §§9:70, 9:71.]

6. The case is not ready for trial. [See §9:80 ff.]

Note that three, four, and five are potentially

grounds for seeking a continuance during trial, as

well. [See Ch 37.]

§9:04 Making the Motion

When and how to make the motion obviously

depend on the circumstances. Ordinarily, the motion

should be made as soon as counsel perceives the

need. If an emergency suddenly arises and there

is no time for a written motion, an oral motion to

the trial court must suffice. If the trial date is in

the future, the motion should be made on papers,

with the usual time provisions of CPLR 2214.

If time is short, bring the motion on by Order to

Show Cause. CPLR 2214(d) allows shortened time

periods on Orders to Show Cause where time is

of the essence. (In some jurisdictions, all motions

must be made on Orders to Show Cause once the

case has been assigned to a trial part; e.g., Bronx

County’s Special Trial Part (STP). Always check

the current local rules. If the case will be tried

by an IAS judge, be sure to comply with that