Ordered that the judgment is reversed, on the facts and as a matter of discretion, without costs or disbursements, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for a new trial.
In November 1999 the plaintiff brought this action to recover damages for injuries sustained in a fall which occurred on March 30, 1999, at 877 Rockaway Avenue in Brooklyn. When the action appeared on the Supreme Court’s trial calendar on July 7, 2003, the plaintiff made an application for an adjournment based on the asserted unavailability of her doctor. Although that application was denied, Justice Joseph E Bruno directed the plaintiff to work out any problems with the doctor after picking the jury. Jury selection took place on July 8, 2003 and the case appeared for trial on July 10, 2003 before Justice Ira B. Harkavy, at which time the plaintiffs attorney made an application, in effect, for a continuance (although denominated as one for a mistrial and to disband the jury), this time alleging that the plaintiffs doctor might no longer be willing to testify even if subject to subpoena. In opposing the application, the defendant’s counsel did not assert that the action had been or was being delayed or that prejudice would be occasioned to the defendant by a grant of the relief sought by the plaintiff. Nonetheless, Justice Harkavy denied the plaintiffs application and dismissed the complaint.
On appeal, the plaintiffs sole contention is that the Supreme Court improvidently exercised its discretion in denying her application on July 10, 2003, in effect, for a continuance (see Byrnes v Varlack, 17 AD3d 616 [2005]; Canty v McLoughlin, 16 AD3d 449 [2005]; Jun-Yong Kim v A&J Produce Corp., 15 AD3d 251 [2005]; Conde v Williams, 6 AD3d 569 [2004]; Azapinto v Jamaica Hosp., 297 AD2d 301 [2002]), because the witness’s testimony was material, the application was timely made for purpose other than a mere delay of the trial, and the need for