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Active Imaging, P.C. As Assignee of Stewart Howard, Luba Gorbunov v. Geico General Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 23, 2011

ACTIVE IMAGING, P.C. AS ASSIGNEE OF STEWART HOWARD, LUBA GORBUNOV
AND ASHANTI SAMPLES,
RESPONDENT,
v.
GEICO GENERAL INS. CO.,
APPELLANT.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Dawn Marie Jiminez, J.), dated September 11, 2008, deemed from a judgment of the same court entered December 1, 2008 (see CPLR 5520 [c]). The judgment, after a non-jury trial, awarded plaintiff the principal sum of $7,201.77.

Active Imaging, P.C. v GEICO Gen. Ins. Co.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the services rendered were medically necessary, as all elements of plaintiff's case had been established and defendant had timely denied the claim on the ground of lack of medical necessity. At the non-jury trial, defendant's attorney requested an adjournment to "secure the appearance of [its] witness in this matter." The Civil Court denied the application and issued a decision awarding judgment in defendant's favor. Defendant appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

It is well settled that an application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]), and the court's determination will not be disturbed on appeal absent an improvident exercise of that discretion (see Wolosin v Campo, 256 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). We find that the Civil Court did not improvidently exercise its discretion in declining to grant defendant an adjournment. Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: May 23, 2011

20110523

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