Plaintiff in this personal injury action litigated it correctly right up to trial. However, it then fell completely apart. Trial attorney hired about a week prior to trial, and was not exactly ready. Request for an adjournment denied, case dismissed. The decision places the fault squarely with plaintiff’s attorney. Is this Legal Malpractice?
"Whether to grant an adjournment is a matter within the discretion of the trial court (see Matter of Steven B., 6 NY3d 888, 889 ). Although there is no indication of delay by plaintiff in the litigation of this matter until the day of trial, it remains that neither plaintiff’s counsel of record nor plaintiff’s newly retained trial counsel provided the court or the defense with advance notice of plaintiff’s purported inability to proceed to trial on the appointed date, and instead, submitted, on the day of the scheduled trial, an affidavit of engagement that admittedly contained misstatements of fact. Not only did plaintiff’s counsel of record act contrary to the mandate of 22 NYCRR § 202.31 by retaining outside trial counsel fewer than 10 days before the trial was to begin, but the attorney retained was clearly not prepared to try the matter on the scheduled date. In view of counsel’s noncompliance with 22 NYCRR § 202.31 and the trial attorney’s false representations to the court, we cannot say that the trial court improvidently exercised its discretion in denying plaintiff an adjournment and, when plaintiff refused to proceed, dismissing the action for failure to prosecute"