Motion for Continuance or New Trial in New York

What Is a Motion for Continuance or New Trial?

Background

CPLR 4402 of the New York Consolidated Laws provides a vehicle for the court to grant a Motion for Continuance or New Trial during trial. "At any time during the trial, the court, on motion of any party, may order a continuance or a new trial in the interest of justice on such terms as may be just." (N.Y. C.P.L.R. 4402.) The motion is granted, in the discretion of the court, "when it appears that owing to some accident or surprise, defect of proof, unexpected and difficult questions of law, or like reason a trial cannot proceed without injustice to a party." (Hannon v. Dunkirk Motor Inn, Inc., 167 A.D.2d 834.)

How to Structure the Motion

"A Motion for Continuance should be made as soon as the reason for such a continuance arises. Among the grounds which have been the basis for a new trial are: inability of a material witness to testify because of illness (Hannon v. Dunkirk Motor Inn, Inc., 167 A.D.2d 834); inadmissibility, because of unexpected objection, of a document material to a partyÕs proof (Metropolitan Life Ins. Co. v. Whitaker, 34 A.D.2d 729); a deliberate attempt by an attorney to tell the jury that the defendant is insured or subject to collateral sources (Sperduti v. Mezger, 283 A.D.2d 1018); cross examination of a witness about knowledge of a prior settlement (Hill v. Arnold, 226 A.D.2d 232); the prejudicial length of a cross examination such as to deprive a party of the right to re-direct examination (Matter of Bank of N.Y. v. Assessor of Vil. of Bronxville, 791 N.Y.S.2d 867); extra judicial communications between a juror and a witness (Coyne v. Etra, N.Y.L.J., Sept. 7, 1999, p.29); and a material variance between pleading and proof (Borovskaya v. Herskovic, 300 A.D.2d 331).

Response

A party wishing to oppose a Motion for Continuance should endeavor to show that the moving party's motion is being made for an improper purpose, such as delay or the failure to exercise due diligence. (Notrica v. North Hills Holding Co., LLC, 43 A.D.3d 1119, 1120.)

Meet and Confer

There is no requirement prior to filing a Motion for Continuance to meet and confer. Generally it is a good idea to meet and confer, as the Court is more likely to approve a Stipulation to Continue Trial agreed to by all parties.

The Court’s Decision

The granting or denial of a motion for a continuance is within the sound discretion of the trial judge and should not be interfered with absent a clear abuse. (Newmark v. Animal Emergency Clinic of Hudson Val., 38 A.D.3d 1110). Granting of a motion for a continuance is almost never reviewable. (Graney Dev. Corp. v. Taksen, 66 A.D.2d 136.) However, it is an improvident exercise of discretion to deny a continuance when "the application is properly made, is not made for the purpose of delay, the evidence is material, and the need for a continuance did not result from the failure to exercise due diligence". (Mura v. Gordon, 252 A.D.2d 485.)

Monetary Awards

There is no provision in the New York Consolidated Laws for monetary awards associated with a motion for continuance.

Timeline

The Motion for Continuance can be made at any time during the trial. (N.Y. C.P.L.R. 4402)

Documents for Motion for Continuance or New Trial in New York

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D&S, Ltd v. Ge Healthcare Technologies, Inc., General Electric Capital Corporation document preview - page 1 of 8

EXHIBIT(S) - C - South Carolina Complaint

FILED: NEW YORK COUNTY CLERK 08/14/2023 02:05 PM INDEX NO. 653909/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/14/2023 EXHIBIT "C" FILED: NEW 3:23-cv-00782-MGL YORK COUNTY CLERK Date Filed 02/27/23 Entry 08/14/2023 02:05Number PM 1 Page INDEX …

Case Name D&S, Ltd v. Ge Healthcare Technologies, Inc., General Electric Capital…