Village of Clayville, Appellant, v. Stearns & Wheler Engineers and Scientists et al., Respondents

Order unanimously reversed on the law without costs, complaint reinstated and new trial granted in accordance with the following Memorandum: Supreme Court abused its discretion in denying the request of plaintiff for a one-day continuance to allow its expert witness to testify (see, Stevens v Auburn Mem. Hosp., 286 AD2d 965; Halloran v Spina Floor Covering, 185 AD2d 149; Cirino v St. John, 146 AD2d 912, 913). In addition, the court erred in sua sponte dismissing the complaint before plaintiff rested its case (see, McGhee v New York City Hous. Auth., 243 AD2d 544; Cass v Broome County Co-op. Ins. Co., 94 AD2d 822, 823; Balogh v H.R.B. Caterers, 88 AD2d 136, 141). We therefore reverse the order, reinstate the complaint and grant a new trial before a different Justice. (Appeal from Order of Supreme Court, Oneida County, Grow, J. — Negligence.) Present — Green, J. P., Kehoe, Burns, Gorski and Lawton, JJ.