| Hawes v Lewis |
| 2015 NY Slip Op 03127 [127 AD3d 921] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Laverne Hawes, as Guardian of the Person and Propertyof Frances Ward, et al., Respondents, v Yasser Lewis et al., Appellants, et al.,Defendant. |
Levy & Nau, P.C., Brooklyn, N.Y. (Roger A. Levy of counsel), forappellants.
Solomon E. Antar, Brooklyn, N.Y. (Leopold Gross of counsel), for respondents.
In an action, inter alia, to cancel a deed and to set aside a conveyance of certain realproperty, the defendants Yasser Lewis, Basheer Jameel Lewis, Fulton Brothers Realty,LLC, and 1289 Fulton Street, LLC, appeal from an order of the Supreme Court, KingsCounty (Baily-Schifman, J.), dated February 21, 2014, which, upon the denial of theirrequest for an adjournment to obtain new counsel, inter alia, granted the plaintiffs'unopposed motion to strike their answers, and thereupon set the matter down for aninquest on the issue of damages.
Ordered that the appeal is dismissed except insofar as it brings up for review thedenial of the appellants' request for an adjournment (see CPLR 5511; Katz vKatz, 68 AD2d 536, 540-542 [1979]); and it is further,
Ordered that the order is affirmed insofar as reviewed, with costs.
Where, as here, the order appealed from was made upon the appellants' default,"review is limited to matters which were the subject of contest below" (Matter of Constance P. v AvraamG., 27 AD3d 754, 755 [2006]; see James v Powell, 19 NY2d 249, 256 n3 [1967]; Diamond vDiamante, 57 AD3d 826, 827 [2008]). Accordingly, in this case, review islimited to the denial of the appellants' request for an adjournment (see Matter of Sacks vAbraham, 114 AD3d 799, 800 [2014]; Diamond v Diamante, 57 AD3dat 827; Tun v Aw, 10 AD3d651, 652 [2004]).
The granting of an adjournment for any purpose rests within the sound discretion ofthe court (see Matter of StevenB., 6 NY3d 888, 889 [2006]; Dune Deck Owners Corp. v J.J.& P. Assoc. Corp., 85AD3d 1091 [2011]; Diamond v Diamante, 57 AD3d at 827), and itsdetermination will not be disturbed absent an improvident exercise of that discretion(see Diamond v Diamante, 57 AD3d at 827; Davidson v Davidson, 54 AD3d 988 [2008]). In decidingwhether to grant an adjournment, the court must engage in a balanced consideration ofnumerous relevant factors, including the merit or lack of merit of the action, the extent ofthe delay, the number of adjournments granted, the lack of intent to deliberately defaultor abandon the action, and the length of the pendency of the proceeding (seeDiamond v Diamante, 57 AD3d at 827).
Applying these principles here, the Supreme Court did not improvidently exercise itsdiscretion in denying the appellants' request for an adjournment to obtain new counselafter their [*2]second counsel was relieved, as secondcounsel requested that the appellants permit it to be relieved of the obligation ofrepresentation, based on the appellants' lack of cooperation with second counsel, and theappellants thereupon voluntarily consented to second counsel's request (see Sarlo-Pinzur v Pinzur, 59AD3d 607, 608 [2009]; Graco Constr. Corp. v Eves, 232 AD2d 370, 371[1996]).
The appellants' remaining contentions are not properly before this Court. Dillon, J.P.,Dickerson, Hall and LaSalle, JJ., concur.