Majority
Contrary to the appellants’ contention, the verdict was based upon a fair interpretation of the evidence and, therefore, will not be set aside as being against the weight of the evidence (see Nicastro v Park, 113 AD2d 129 , 134). However, the Supreme Court improvidently exercised its discretion in denying the appellants a short adjournment to locate a witness. The witness’ testimony was material, the application was properly made and was not made for purpose of delay, and the need for the adjournment did not result from the appellants’ failure to exercise due diligence (see Matter of Shepard, 286 AD2d 336 ; Matter of Weinstock, 283 AD2d 511 ). Thus, a new trial is granted. If the witness is unavailable within the meaning of CPLR 3117 (a) (3), her deposition testimony may be offered at the new trial.
In light of this determination, the appellants’ remaining contentions need not be reached. Ritter, J.P., Feuerstein, Smith and Adams, JJ., concur.
Cases cited
- Nicastro v. Park 113 AD2d 129 at 134 p. 301
- In re the Estate of Shepard 286 AD2d 336 p. 301
- In re the Estate of Weinstock 283 AD2d 511 p. 301