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CHARLES W. BILYOU v. STATE NEW YORK (10/23/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


October 23, 1969

CHARLES W. BILYOU, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF CHARLOTTE BILYOU, DECEASED, APPELLANT,
v.
STATE OF NEW YORK, RESPONDENT

Staley, Jr., J. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Staley, Jr., J.

Author: Staley

Appeal from an order of the Court of Claims, entered November 25, 1968, which denied claimant's motion for an examination before trial de novo or, in the alternative, for leave to complete an examination before trial commenced on May 25, 1967. On March 31, 1967 the Court of Claims made an order permitting claimant to examine the State before trial, and required that the examination be completed on or before May 19, 1967. By order dated September 13, 1967 the court extended claimant's time to complete the examination to October 15, 1967. Upon receipt of this order claimant learned that the stenographer, who had reported the beginning of the examination before trial, was engaged in the Supreme Court, and would not be available until the month of November. By letter dated October 3, 1967 claimant sought a further extension of time, which was denied by the court by letter dated October 4, 1967. On October 9, 1967 claimant moved for an order extending the time, which motion was denied by the court. Claimant appealed from this order, and on May 27, 1968 this court unanimously affirmed the order. (Bilyou v. State of New York, 30 A.D.2d 627.) By order to show cause dated November 8, 1968 claimant moved that the examination before trial, "which has heretofore been begun, be continued, or in the alternative that an examination before trial de novo of the State of New York be granted * * * upon the ground that the original examination before trial of the defendant has not been completed although the time to do so, established by court order, has expired, and in the interest of justice." By order dated November 25, 1968 the Court of Claims denied this motion in all respects, stating that "claimant seeks the same relief and makes the same arguments which were disposed of by Orders of this Court dated March 31, 1967, September 13, 1967 and November 14, 1967." Claimant now appeals from this order. This motion is, in effect, a renewal of the motion which was denied by order dated November 14, 1967 which order this court affirmed saying, "We find no substantial basis for interfering with the exercise of the court's discretion." (Bilyou v. State of New York, 30 A.D.2d 627, supra.) There are no new facts or change of conditions alleged, and we find no reason for altering our prior decision. The prior order fully determined the matter here litigated. The conduct of a trial, including adjournments thereof, is within the discretion of the trial court, and should not be interfered with except in cases of abuse. (Matter of Head v. State of New York, 32 A.D.2d 999; Matter of Case, 24 A.D.2d 797.)

Disposition

 Order affirmed, without costs.

19691023

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