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ANINA H. MONTE
PARTNER
DIRECT DIAL: (516) 712-3141
E-MAIL: anina.monte@mcblaw.com
May 25, 2023
Via NYSCEF
The Honorable Christopher Modelewski, J.S.C.
Supreme Court Suffolk County
Re: xxxxxxxx, xxxxxx V. RONALD J. TADEO, M.D., ET AL.
Index No. 026910/2012
MCB File No. 00033-087918
Dear Honorable Justice Modelewski:
I write in response to the letter application made by plaintiff’s trial counsel, xxxxxx L.
xxxxxxx, which requests a conference with this Court, prior to May 30, 2023. I join in that portion
of his application and wish to detail the defendant’s position prior to such time.
As the Court is well aware, we have already picked a jury on this case, which has been
pending before the Court since 2012, and are scheduled to start with opening statements on May
30, 2023. My client, Dr. Taddeo, is schedule to fly in from Florida on Sunday of this weekend, to
attend the trial and provide his testimony as scheduled. Prior to selecting our jury, we were aware
of plaintiff’s issues with respect to his causation and damages expert Dr. Reid. While we are
willing to work with counsel and accept virtual testimony from this witness, I did advise Mr.
xxxxxxx that ultimately the decision would be left within the sound discretion of the Court.
This morning we learned that in addition to the scheduling issues with Dr. Reid, plaintiff’s
liability expert would not be willing to testify at the time of trial. The issue with respect as to why
his expert, Dr. Jayaram, is not willing to testify are detailed in his letter of today’s date. Counsel
has provided our office with a new expert disclosure today, days before we are set to open. On
behalf of my client, I object to this substitution. To allow the plaintiff to change his expert at this
late stage of the case, when we have already begun trial, is highly prejudicial, it should not be
permitted, and it should not serve as a basis to adjourn the trial of this case.
AHM/md
4860771
May 25, 2023
Page 2
Unlike a simple negligence case, this is a matter concerning medical malpractice, the issues
of which have been litigated for over 10 years. The defendants’ expert disclosures were exchanged
in August 2022, prior to the original trial date for this case. Plaintiff’s counsel, and consequently
his expert, should have been aware of the identity of our psychiatry expert, Dr. Muskin, since that
time. To allow a substitution of plaintiff’s liability expert at this late hour is highly prejudicial.
As I am sure the Court is well aware, significant time goes into trial development and preparation.
It requires months of work, including thorough medical research and analysis of the literature, in
depth discussions with experts, and research of plaintiff’s expert’s prior testimony and publications
on the issue.
A change to the expert is not as simple as swapping out one doctor for another. The
physician’s credentials, testimonial history, research work, and experience are explored. The
theory of the case is fully vetted and expert analysis is conducted. Service of a supplemental expert
disclosure essentially two days prior to opening statements, prior to Memorial Day weekend,
renders it impossible to properly prepare for trial.
The extremely late notice is, in and of itself, prejudicial. The intent of CPLR 3101(d) is to
avoid ambush at trial and to permit defendants ample time to properly prepare their defenses. The
Second Department has considered the options available for such a situation, and while time is
often a remedy offered, when, such as here, the late notice is at the time of trial, the law affords
the Court the ability to strike the expert disclosure, preclude the testimony and to dismiss the
Complaint. In the instant matter, the only reason given by the expert for not being able to testify
is Dr. Jayaram’s unwillingness to testify against our expert, Dr. Muskin. This is a fact that should
have been ascertainable almost a year ago.
On this set of facts, we therefore ask the Court to strike the newly served expert exchange,
preclude this new expert from testifying and to dismiss the plaintiff’s Complaint pursuant to 22
NYCRR 202.27. For guidance, I am attaching three Appellate Division decisions to this letter:
Tunell v. Maynard, 209 AD3d 515 (First Dep’t 2022); Melendes v. Stack, 171 A.D.3d 726 (2nd
Dept 2019); and Campbell v. Dwyer, 185 A.D.3d 777 (2nd Dept 2020). Each support the Court’s
determination to dismiss the plaintiff’s case, for an inability to proceed to trial under similar
circumstances as the case at bar.
Respectfully submitted,
MARTIN CLEARWATER & BELL LLP
Anina H. Monte
Enclosures
AHM/md
4860771
Campbell v. Dwyer, 185 A.D.3d 777 (2020)
125 N.Y.S.3d 300, 2020 N.Y. Slip Op. 03890
185 A.D.3d 777 ORDERED that one bill of costs is awarded to the respondent.
Supreme Court, Appellate Division,
Second Department, New York. In 2014, the plaintiff commenced this personal injury action
to recover damages that he allegedly sustained when he was
Lukelyn CAMPBELL, appellant, struck by a kitchen cabinet door in the basement apartment
v. where he was staying. The plaintiff filed a note of issue. After
Denval DWYER, respondent. the trial date was adjourned several times, by order dated May
23, 2017, the Supreme Court directed dismissal of the action
2019–10691 pursuant to 22 NYCRR 202.27 based upon the plaintiff's
| failure to proceed. On May 1, 2018, the plaintiff moved, in
2019–10692 effect, to vacate the May 23, 2017, dismissal order and to
| restore the action to the trial calendar. The plaintiff's motion
(Index No. 68129/14) was granted, and a trial date was set for August 6, 2018.
|
Submitted—May 8, 2020 On August 6, 2018, the plaintiff sought, in effect, leave
| to amend his bill of particulars, to mark the case off the
July 15, 2020 trial calendar, and to schedule further discovery with respect
to certain newly-claimed injuries. After the Supreme Court
Attorneys and Law Firms denied the plaintiff's application, the plaintiff refused to
proceed with the trial, and the court issued an order dated
Sacco & Fillas, LLP, Astoria, N.Y. (Albert R. Matuza, Jr., of
August 6, 2018, directing dismissal of the action pursuant
counsel), for appellant.
to 22 NYCRR 202.27. Almost a year later, without leave of
Henderson & Brennan, White Plains, N.Y. (Brian C. court, the plaintiff served the defendant with a document titled
Henderson of counsel), for respondent. “supplemental bill of particulars,” which was, in actuality, an
amended bill of particulars.
JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER,
COLLEEN D. DUFFY, BETSY BARROS, JJ. On August 7, 2019, the plaintiff moved pursuant to CPLR
5015(a)(1) to vacate the August 6, 2018, dismissal order and
*778 to restore the action to the trial calendar. On August 22,
**301 DECISION & ORDER 2019, after hearing oral arguments, the Supreme Court denied
the plaintiff's motion. By order dated August 29, 2019, the
*777 In an action to recover damages for personal injuries, court, in effect, denied the same relief. The plaintiff appeals.
the plaintiff appeals from (1) an order of the Supreme
Court, Westchester County (Nicholas Colabella, J.H.O.), Pursuant to 22 NYCRR 202.27, a court may dismiss an action
dated August 22, 2019, and (2) an order of the same court when a plaintiff fails or refuses to proceed to trial at the call of
dated August 29, 2019. The order dated August 22, 2019, the calendar (see Melendez v. Stack, 171 A.D.3d 726, 728, 98
denied the plaintiff's motion pursuant to CPLR 5015(a)(1) N.Y.S.3d 106; Guttilla v. Peppino's Food, Inc., 125 A.D.3d
to vacate an order of the same court dated August 6, 2018, 604, 605, 3 N.Y.S.3d 108; Aydiner v. Grosfillex, Inc., 111
directing dismissal of the action pursuant to 22 NYCRR A.D.3d 589, 589, 975 N.Y.S.2d 80). In order to be relieved
202.27, and to restore the action to the trial calendar. The order of that default, a plaintiff must demonstrate both a reasonable
dated August 29, 2019, in effect, denied the same relief. excuse for the default and a potentially meritorious cause
of action (see CPLR 5015[a][1]; SS Charmer Corp. v. First
ORDERED that the appeal from the order dated August 22, Natl. Bank of Long Is., 172 A.D.3d 1423, 1424, 99 N.Y.S.3d
2019, is dismissed, as that order was superseded by the order 705; Guttilla v. Peppino's Food, Inc., 125 A.D.3d at 605,
dated August 29, 2019; and it is further, 3 N.Y.S.3d 108; Frey v. Chiou, 94 A.D.3d 810, 811, 941
N.Y.S.2d 522).
ORDERED that the order dated August 29, 2019, is affirmed;
and it is further,
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1
Campbell v. Dwyer, 185 A.D.3d 777 (2020)
125 N.Y.S.3d 300, 2020 N.Y. Slip Op. 03890
Since the plaintiff failed to demonstrate a reasonable excuse,
Here, the plaintiff failed to demonstrate a reasonable excuse
this Court need not consider whether he demonstrated a
for his failure to proceed to trial at the call of the calendar.
Contrary to the plaintiff's contention, the **302 case was potentially meritorious cause of action (see Option One Mtge.
not marked off the trial calendar pursuant to CPLR 3404, Corp. v. Rose, 164 A.D.3d 1251, 1253, 82 N.Y.S.3d 116; Stein
but rather was dismissed pursuant to 22 NYCRR 202.27, and v. Doukas, 157 A.D.3d 743, 744, 68 N.Y.S.3d 495).
the amended bill of particulars served upon the defendant,
without leave of court, subsequent to the action's dismissal Accordingly, we agree with the Supreme Court's
was a nullity (see Salgado v. Town Sports Intl., 73 A.D.3d determination denying the plaintiff's motion to vacate the
August 6, 2018, dismissal order (see Geffner v. Mercy Med.
898, 899, 901 N.Y.S.2d 325; Gaisor v. Gregory Madison Ctr., 167 A.D.3d 574, 574–575, 89 N.Y.S.3d 263).
Ave., LLC, 13 A.D.3d 58, 60, 786 N.Y.S.2d 158; Bartkus v.
New York Methodist Hosp., 294 A.D.2d 455, 742 N.Y.S.2d
554). Furthermore, the plaintiff did not demonstrate that his
application, in effect, for leave to amend his bill of particulars LEVENTHAL, J.P., MILLER, DUFFY and BARROS, JJ.,
to include new injuries, which was made on the eve of trial, concur.
had any merit (see Canals v. Lai, 132 A.D.3d 626, 627, 17
All Citations
N.Y.S.3d 311; Green v. New York City Hous. Auth., 81 A.D.3d
890, 891, 917 N.Y.S.2d 313; Daly–Caffrey v. Licausi, 70 185 A.D.3d 777, 125 N.Y.S.3d 300 (Mem), 2020 N.Y. Slip
A.D.3d 884, 885, 895 N.Y.S.2d 197). Op. 03890
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 2
Melendez v. Stack, 171 A.D.3d 726 (2019)
98 N.Y.S.3d 106, 2019 N.Y. Slip Op. 02512
trial court may (1) adjourn the trial to another
171 A.D.3d 726 date, (2) mark the case off or strike it from
Supreme Court, Appellate Division, the calendar pursuant to statute governing the
Second Department, New York. dismissal of abandoned cases, (3) vacate the note
of issue pursuant to uniform rule for trial courts
Danny MELENDEZ, Appellant, governing the vacating of note of issue, or (4)
v. dismiss the complaint pursuant to uniform rule
Paula STACK, et al., Respondents, et al., Defendants. for trial courts governing defaults. N.Y. CPLR §
3404(3); N.Y. Comp. Codes R. & Regs. tit. 22,
2018–06492 §§ 202.21(e), 202.27.
|
(Index No. 11423/13) 2 Cases that cite this headnote
|
Submitted—December 3, 2018 [2] Pretrial Procedure Delay or failure to
| prosecute in general
April 3, 2019 Under uniform rule for trial courts governing
defaults, a trial court may dismiss an action when
Synopsis
a plaintiff is unprepared to proceed to trial at
Background: Plaintiff brought personal-injury action arising
the call of the calendar. N.Y. Comp. Codes R. &
from automobile accident. Action was dismissed after
Regs. tit. 22, § 202.27.
plaintiff's attorney stated that he was unable to proceed with
jury selection and that he had issues with his expert witness. 1 Case that cites this headnote
The Supreme Court, Suffolk County, Paul J. Baisley, Jr., J.,
denied plaintiff's motion to vacate dismissal and to restore
action to trial calendar. Plaintiff appealed. [3] Judgment Necessity for excuse
Judgment Necessity for showing
meritorious cause of action or defense
[Holding:] The Supreme Court, Appellate Division, held that In order to be relieved of a default entered by
plaintiff failed to sufficiently establish unavailability of expert the trial court when a plaintiff is unprepared
witness in order to demonstrate a reasonable excuse for why to proceed to trial at the call of the calendar,
he was unprepared to proceed to trial on date of jury selection. a plaintiff must demonstrate both a reasonable
excuse for the default and a potentially
meritorious cause of action. N.Y. Comp. Codes
Affirmed. R. & Regs. tit. 22, § 202.27.
Procedural Posture(s): On Appeal; Motion to Set Aside or 2 Cases that cite this headnote
Vacate Dismissal.
[4] Judgment Discretion of court
West Headnotes (5) While public policy strongly favors the
resolution of cases on the merits, a determination
of whether an excuse is reasonable, as required
[1] Pretrial Procedure Power and discretion to be relieved of default arising from being
of court in general unprepared to proceed to trial at call of the
Trial Note of issue calendar, lies within the sound discretion of the
Trial Striking cause from docket Supreme Court. N.Y. Comp. Codes R. & Regs.
tit. 22, § 202.27.
Trial Adjournments pending trial
Where a case is called for trial and one of the
parties fails to appear or is unable to proceed, the
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1
Melendez v. Stack, 171 A.D.3d 726 (2019)
98 N.Y.S.3d 106, 2019 N.Y. Slip Op. 02512
judgment dismissing the complaint and all cross claims
[5] Pretrial Procedure Absence or insofar as *727 asserted against them. The court also granted
unavailability of party or witness the plaintiff's cross motion for summary judgment on the issue
In action to recover damages for personal injuries of liability against the defendants Lauren LaCarrabba and
allegedly sustained by plaintiff as a result of Paula Stack (hereinafter together the defendants).
a motor vehicle accident, plaintiff failed to
sufficiently establish the unavailability of expert On August 13, 2015, the plaintiff filed a note of issue and
witness in order to demonstrate a reasonable certificate of readiness for trial. A trial was scheduled to
excuse for why he was unprepared to proceed to begin on November 15, 2016. Jury selection was adjourned to
trial on date of jury selection, and thus dismissal December 5, 2016, with the trial to commence on December
of action was warranted; plaintiff's expert did not 12, 2016. Thereafter, the matter was adjourned to January 17,
state that she was unavailable to testify on date 2017, for jury selection, and the trial was scheduled to begin
offered by trial court and did not address whether on January 25, 2017.
plaintiff's attorney had asked if she was available
to testify during the week in which trial court When the parties appeared in court on January 25, 2017, they
offered. N.Y. Comp. Codes R. & Regs. tit. 22, § were informed that a trial part was not available that day, but
202.27. that one would be available the following day. The plaintiff's
attorney advised the Supreme Court that he was “not prepared
to go forward with the trial” on January 26, 2017, because of
“some scheduling issues.” The plaintiff's attorney reiterated
that he was “not prepared to go forward” and stated that he did
**107 In an action to recover damages for personal injuries, not want to “be rushed through the process.” The plaintiff's
the plaintiff appeals from an order of the Supreme Court, attorney requested that the court remove the matter from the
Suffolk County (Paul J. Baisley, Jr., J.), dated January 12, calendar. The defendants' attorney stated that the defendants
2018. The order denied the plaintiff's motion to vacate the were ready to proceed to trial the following day, and objected
dismissal of the action and to restore the action to the trial to the plaintiff's request for an adjournment. The court granted
calendar. the plaintiff's request for an adjournment to the extent of
directing that the jury be disbanded, and that the parties were
Attorneys and Law Firms
to return on January 30, 2017, to select a new jury and then
The Sachs Firm, P.C. (Alexander J. Wulwick, New York, NY, to proceed to trial on February 1, 2017. The court explicitly
of counsel), for appellant. stated that the parties would have as much time as they needed
in order to finish the trial. The plaintiff's attorney stated that he
Abamont & Associates, Garden City, N.Y. (Evan B. Cohen of was not “prepared to proceed” on January 30, 2017, and again
counsel), for respondents. requested that the matter be marked off the calendar and the
trial adjourned for 30 to 60 days in order to allow the plaintiff
MARK C. DILLON, J.P., CHERYL E. time to “re-prepare.” The court denied the plaintiff's request
CHAMBERS, VALERIE BRATHWAITE NELSON, LINDA for any further adjournments.
CHRISTOPHER, JJ.
On January 30, 2017, the parties appeared for jury selection.
The plaintiff's attorney stated that he was unable to proceed
**108 DECISION & ORDER with jury selection, and that he had issues with his expert
witness. The defendants opposed the plaintiff's application
*726 ORDERED that the order is affirmed, with costs. for another adjournment, and moved to dismiss the action
pursuant to “the applicable sections of the CPLR” and
In April 2013, the plaintiff commenced this action against the 22 NYCRR 202.27(b) based upon the plaintiff's failure to
defendants to recover damages for personal injuries allegedly proceed to trial. The court offered the plaintiff the opportunity
sustained by the plaintiff as a result of a motor vehicle to pick a jury that day, to start the trial on February 6, 2017, or
accident that occurred on August 11, 2010. In an order dated February 7, 2017, and to allow the plaintiff's expert witness to
June 3, 2015, the Supreme Court granted the motion of the testify on February 9, 2017. The plaintiff's attorney responded
defendants Nancy Hall and Michelle A. Hall for summary
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 2
Melendez v. Stack, 171 A.D.3d 726 (2019)
98 N.Y.S.3d 106, 2019 N.Y. Slip Op. 02512
that his expert *728 witness was “not available then,” and Dimitriadis v. Visiting Nurse Serv. of N.Y., 84 A.D.3d 1150,
that both he and defense counsel had trials “the following 923 N.Y.S.2d 691), a determination of whether an excuse is
week.” The court granted the defendants' motion to dismiss reasonable lies within the sound discretion of the Supreme
the action, inter alia, pursuant to 22 NYCRR 202.27. Court (see Stein v. Doukas, 157 A.D.3d 743, 744, 68 N.Y.S.3d
495; GMAC Mtge., LLC v. Guccione, 127 A.D.3d 1136, 1138,
On or about September 18, 2017, the plaintiff moved to vacate 9 N.Y.S.3d 83).
the dismissal of **109 the action and to restore the action
to the trial calendar, arguing that he presented a reasonable [5] Here, the Supreme Court providently exercised its
excuse for the inability to proceed to trial because of the expert discretion in dismissing the action, because the plaintiff
witness's unavailability. Additionally, the plaintiff submitted failed to demonstrate a reasonable excuse for why he was
an affidavit from his expert witness, in which the witness unprepared to proceed to trial on January 30, 2017. The
stated, inter alia, that she is a licensed psychologist, and that plaintiff's expert did *729 not state that she was unavailable
she “was not available due to the scheduling of [her] patients” to testify on February 9, 2017, as offered by the court, and did
during the week of January 30, 2017. In an order dated not address whether the plaintiff's attorney had asked if she
January 12, 2018, the Supreme Court denied the plaintiff's was available to testify during the second week in February
motion, concluding that the plaintiff “failed to demonstrate a (see Spodek v. Lasser Stables, 89 A.D.2d 892, 893, 453
reasonable excuse for his default on January 30, 2017.” As N.Y.S.2d 706). Although an expert witness's unavailability
a result, the court did not address whether the plaintiff had a may provide a reasonable excuse for a party's inability to
potentially meritorious cause of action. The plaintiff appeals. proceed to trial (see Vera v. Soohoo, 99 A.D.3d at 992, 953
N.Y.S.2d 615; Conde v. Williams, 6 A.D.3d 569, 570, 774
[1] [2] [3] [4] Where a case is called for trial and oneN.Y.S.2d 834), under the circumstances here, it cannot be said
of the parties fails to appear or is unable to proceed, the trial that the plaintiff sufficiently established the unavailability of
court may “(1) adjourn the trial to another date, (2) mark the the expert witness (see Spodek v. Lasser Stables, 89 A.D.2d
case ‘off’ or strike it from the calendar pursuant to CPLR at 893, 453 N.Y.S.2d 706).
3404, (3) vacate the note of issue pursuant to Uniform Rules
for Trial Courts (22 NYCRR) § 202.21(e), or (4) dismiss Since the plaintiff failed to offer a reasonable excuse for his
the complaint ... pursuant to Uniform Rules for Trial Courts default, the issue of whether he had a potentially meritorious
(22 NYCRR) § 202.27” (Basetti v. Nour, 287 A.D.2d 126, cause of action need not be addressed (see Lee v. Latendorf,
133, 731 N.Y.S.2d 35). Thus, under 22 NYCRR 202.27, a 162 A.D.3d 1002, 1004, 80 N.Y.S.3d 447).
court may dismiss an action when a plaintiff is unprepared
to proceed to trial at the call of the calendar (see Guttilla v. Accordingly, we agree with the Supreme Court's
Peppino's Food, Inc., 125 A.D.3d 604, 605, 3 N.Y.S.3d 108; determination to deny the plaintiff's motion to vacate the
Aydiner v. Grosfillex, Inc., 111 A.D.3d 589, 589, 975 N.Y.S.2d dismissal of the action and to restore the action to the trial
80; Fink v. Antell, 19 A.D.3d 215, 796 N.Y.S.2d 524). In order calendar.
to be relieved of that default, a plaintiff must demonstrate
both a reasonable excuse for the default and a potentially
meritorious cause of action (see Guttilla v. Peppino's Food, DILLON, J.P., CHAMBERS, BRATHWAITE NELSON and
Inc., 125 A.D.3d at 605, 3 N.Y.S.3d 108; Vera v. Soohoo, CHRISTOPHER, JJ., concur.
99 A.D.3d 990, 992, 953 N.Y.S.2d 615). While public policy
strongly favors the resolution of cases on the merits (see All Citations
Fuentes v. Virgil, 88 A.D.3d 643, 930 N.Y.S.2d 479, 480;
171 A.D.3d 726, 98 N.Y.S.3d 106, 2019 N.Y. Slip Op. 02512
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 3
Tunell v Maynard, 209 A.D.3d 515 (2022)
176 N.Y.S.3d 618, 2022 N.Y. Slip Op. 05779
This medical malpractice action, commenced in 2015, was
dismissed on the day jury selection was scheduled, based
on plaintiffs' default, namely their failure to retain an expert
209 A.D.3d 515, 176 N.Y.S.3d witness for trial (see 22 NYCRR 202.27; e.g. Geffner v Mercy
618, 2022 N.Y. Slip Op. 05779 Med. Ctr., 167 AD3d 571, 573 [2d Dept 2018]; see generally
Rivera v Jothianandan, 100 AD3d 542, 542 [1st Dept 2012],
**1 Dorian Tunell et al., Appellants, lv denied 21 NY3d 861 [2013]). Supreme Court providently
v exercised its discretion when it determined that plaintiffs
Michael J. Maynard, M.D., et al., Respondents. did not demonstrate a reasonable excuse for their failure to
proceed with trial on the scheduled date. The affirmation of
Supreme Court, Appellate Division,
plaintiffs' counsel established that despite efforts made prior
First Department, New York
to the trial date, he was not able to identify and retain an expert
16417, 2021-03302, 805333/15
who would support plaintiffs' case (see CPLR 5015 [a] [1];
October 13, 2022
Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d
CITE TITLE AS: Tunell v Maynard 138, 142 [1986]; Chevalier v 368 E. 148th St. Assoc.,
LLC, 80 AD3d 411, 413-414 [1st Dept 2011]; Goldman v
HEADNOTE Cotter, 10 AD3d 289, 291 [1st Dept 2004]). Plaintiffs' claim
of law office failure is not persuasive as there is no indication
Judgments that their counsel's efforts *516 to retain a trial expert were
Default Judgment inadequate. Although strong public policy supports resolving
Vacatur—Medical Malpractice Action Dismissed on Day cases on the merits, here, plaintiffs had more than enough time
Jury Selection Scheduled Based on Plaintiff's Failure to to secure an expert witness for trial. Thus, plaintiffs' position
Retain Expert Witness for Trial—No Reasonable Excuse that an adjournment or striking the case from the trial calendar
would have been more appropriate under these circumstances
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), is not persuasive. Since we agree with Supreme Court that
for appellants. plaintiffs did not demonstrate a reasonable excuse, we need
Mauro Lilling Naparty LLP, New York (Richard J. Montes of not consider whether they demonstrated a meritorious claim
counsel), for respondents. (see Eugene Di Lorenzo, Inc., 67 NY2d at 142). Concur—
Kapnick, J.P., Webber, Oing, González, Kennedy, JJ.
Order, Supreme Court, New York County (Eileen A.
Rakower, J.), entered June 10, 2021, which denied plaintiffs'
CPLR 5015 (a) (1) motion to vacate the judgment, same court
and Justice, entered August 4, 2020, dismissing the action, Copr. (C) 2023, Secretary of State, State of New York
unanimously affirmed, without costs.
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1
Preview
www.mcblaw.com ANINA H. MONTE PARTNER DIRECT DIAL: (516) 712-3141 E-MAIL: anina.monte@mcblaw.com May 25, 2023 Via NYSCEF The Honorable Christopher Modelewski, J.S.C. Supreme Court Suffolk County Re: xxxxxxxx, xxxxxx V. RONALD J. TADEO, M.D., ET AL. Index No. 026910/2012 MCB File No. 00033-087918 Dear Honorable Justice Modelewski: I write in response to the letter application made by plaintiff’s trial counsel, xxxxxx L. xxxxxxx, which requests a conference with this Court, prior to May 30, 2023. I join in that portion of his application and wish to detail the defendant’s position prior to such time. As the Court is well aware, we have already picked a jury on this case, which has been pending before the Court since 2012, and are scheduled to start with opening statements on May 30, 2023. My client, Dr. Taddeo, is schedule to fly in from Florida on Sunday of this weekend, to attend the trial and provide his testimony as scheduled. Prior to selecting our jury, we were aware of plaintiff’s issues with respect to his causation and damages expert Dr. Reid. While we are willing to work with counsel and accept virtual testimony from this witness, I did advise Mr. xxxxxxx that ultimately the decision would be left within the sound discretion of the Court. This morning we learned that in addition to the scheduling issues with Dr. Reid, plaintiff’s liability expert would not be willing to testify at the time of trial. The issue with respect as to why his expert, Dr. Jayaram, is not willing to testify are detailed in his letter of today’s date. Counsel has provided our office with a new expert disclosure today, days before we are set to open. On behalf of my client, I object to this substitution. To allow the plaintiff to change his expert at this late stage of the case, when we have already begun trial, is highly prejudicial, it should not be permitted, and it should not serve as a basis to adjourn the trial of this case. AHM/md 4860771 May 25, 2023 Page 2 Unlike a simple negligence case, this is a matter concerning medical malpractice, the issues of which have been litigated for over 10 years. The defendants’ expert disclosures were exchanged in August 2022, prior to the original trial date for this case. Plaintiff’s counsel, and consequently his expert, should have been aware of the identity of our psychiatry expert, Dr. Muskin, since that time. To allow a substitution of plaintiff’s liability expert at this late hour is highly prejudicial. As I am sure the Court is well aware, significant time goes into trial development and preparation. It requires months of work, including thorough medical research and analysis of the literature, in depth discussions with experts, and research of plaintiff’s expert’s prior testimony and publications on the issue. A change to the expert is not as simple as swapping out one doctor for another. The physician’s credentials, testimonial history, research work, and experience are explored. The theory of the case is fully vetted and expert analysis is conducted. Service of a supplemental expert disclosure essentially two days prior to opening statements, prior to Memorial Day weekend, renders it impossible to properly prepare for trial. The extremely late notice is, in and of itself, prejudicial. The intent of CPLR 3101(d) is to avoid ambush at trial and to permit defendants ample time to properly prepare their defenses. The Second Department has considered the options available for such a situation, and while time is often a remedy offered, when, such as here, the late notice is at the time of trial, the law affords the Court the ability to strike the expert disclosure, preclude the testimony and to dismiss the Complaint. In the instant matter, the only reason given by the expert for not being able to testify is Dr. Jayaram’s unwillingness to testify against our expert, Dr. Muskin. This is a fact that should have been ascertainable almost a year ago. On this set of facts, we therefore ask the Court to strike the newly served expert exchange, preclude this new expert from testifying and to dismiss the plaintiff’s Complaint pursuant to 22 NYCRR 202.27. For guidance, I am attaching three Appellate Division decisions to this letter: Tunell v. Maynard, 209 AD3d 515 (First Dep’t 2022); Melendes v. Stack, 171 A.D.3d 726 (2nd Dept 2019); and Campbell v. Dwyer, 185 A.D.3d 777 (2nd Dept 2020). Each support the Court’s determination to dismiss the plaintiff’s case, for an inability to proceed to trial under similar circumstances as the case at bar. Respectfully submitted, MARTIN CLEARWATER & BELL LLP Anina H. Monte Enclosures AHM/md 4860771 Campbell v. Dwyer, 185 A.D.3d 777 (2020) 125 N.Y.S.3d 300, 2020 N.Y. Slip Op. 03890 185 A.D.3d 777 ORDERED that one bill of costs is awarded to the respondent. Supreme Court, Appellate Division, Second Department, New York. In 2014, the plaintiff commenced this personal injury action to recover damages that he allegedly sustained when he was Lukelyn CAMPBELL, appellant, struck by a kitchen cabinet door in the basement apartment v. where he was staying. The plaintiff filed a note of issue. After Denval DWYER, respondent. the trial date was adjourned several times, by order dated May 23, 2017, the Supreme Court directed dismissal of the action 2019–10691 pursuant to 22 NYCRR 202.27 based upon the plaintiff's | failure to proceed. On May 1, 2018, the plaintiff moved, in 2019–10692 effect, to vacate the May 23, 2017, dismissal order and to | restore the action to the trial calendar. The plaintiff's motion (Index No. 68129/14) was granted, and a trial date was set for August 6, 2018. | Submitted—May 8, 2020 On August 6, 2018, the plaintiff sought, in effect, leave | to amend his bill of particulars, to mark the case off the July 15, 2020 trial calendar, and to schedule further discovery with respect to certain newly-claimed injuries. After the Supreme Court Attorneys and Law Firms denied the plaintiff's application, the plaintiff refused to proceed with the trial, and the court issued an order dated Sacco & Fillas, LLP, Astoria, N.Y. (Albert R. Matuza, Jr., of August 6, 2018, directing dismissal of the action pursuant counsel), for appellant. to 22 NYCRR 202.27. Almost a year later, without leave of Henderson & Brennan, White Plains, N.Y. (Brian C. court, the plaintiff served the defendant with a document titled Henderson of counsel), for respondent. “supplemental bill of particulars,” which was, in actuality, an amended bill of particulars. JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, BETSY BARROS, JJ. On August 7, 2019, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the August 6, 2018, dismissal order and *778 to restore the action to the trial calendar. On August 22, **301 DECISION & ORDER 2019, after hearing oral arguments, the Supreme Court denied the plaintiff's motion. By order dated August 29, 2019, the *777 In an action to recover damages for personal injuries, court, in effect, denied the same relief. The plaintiff appeals. the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Nicholas Colabella, J.H.O.), Pursuant to 22 NYCRR 202.27, a court may dismiss an action dated August 22, 2019, and (2) an order of the same court when a plaintiff fails or refuses to proceed to trial at the call of dated August 29, 2019. The order dated August 22, 2019, the calendar (see Melendez v. Stack, 171 A.D.3d 726, 728, 98 denied the plaintiff's motion pursuant to CPLR 5015(a)(1) N.Y.S.3d 106; Guttilla v. Peppino's Food, Inc., 125 A.D.3d to vacate an order of the same court dated August 6, 2018, 604, 605, 3 N.Y.S.3d 108; Aydiner v. Grosfillex, Inc., 111 directing dismissal of the action pursuant to 22 NYCRR A.D.3d 589, 589, 975 N.Y.S.2d 80). In order to be relieved 202.27, and to restore the action to the trial calendar. The order of that default, a plaintiff must demonstrate both a reasonable dated August 29, 2019, in effect, denied the same relief. excuse for the default and a potentially meritorious cause of action (see CPLR 5015[a][1]; SS Charmer Corp. v. First ORDERED that the appeal from the order dated August 22, Natl. Bank of Long Is., 172 A.D.3d 1423, 1424, 99 N.Y.S.3d 2019, is dismissed, as that order was superseded by the order 705; Guttilla v. Peppino's Food, Inc., 125 A.D.3d at 605, dated August 29, 2019; and it is further, 3 N.Y.S.3d 108; Frey v. Chiou, 94 A.D.3d 810, 811, 941 N.Y.S.2d 522). ORDERED that the order dated August 29, 2019, is affirmed; and it is further, © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1 Campbell v. Dwyer, 185 A.D.3d 777 (2020) 125 N.Y.S.3d 300, 2020 N.Y. Slip Op. 03890 Since the plaintiff failed to demonstrate a reasonable excuse, Here, the plaintiff failed to demonstrate a reasonable excuse this Court need not consider whether he demonstrated a for his failure to proceed to trial at the call of the calendar. Contrary to the plaintiff's contention, the **302 case was potentially meritorious cause of action (see Option One Mtge. not marked off the trial calendar pursuant to CPLR 3404, Corp. v. Rose, 164 A.D.3d 1251, 1253, 82 N.Y.S.3d 116; Stein but rather was dismissed pursuant to 22 NYCRR 202.27, and v. Doukas, 157 A.D.3d 743, 744, 68 N.Y.S.3d 495). the amended bill of particulars served upon the defendant, without leave of court, subsequent to the action's dismissal Accordingly, we agree with the Supreme Court's was a nullity (see Salgado v. Town Sports Intl., 73 A.D.3d determination denying the plaintiff's motion to vacate the August 6, 2018, dismissal order (see Geffner v. Mercy Med. 898, 899, 901 N.Y.S.2d 325; Gaisor v. Gregory Madison Ctr., 167 A.D.3d 574, 574–575, 89 N.Y.S.3d 263). Ave., LLC, 13 A.D.3d 58, 60, 786 N.Y.S.2d 158; Bartkus v. New York Methodist Hosp., 294 A.D.2d 455, 742 N.Y.S.2d 554). Furthermore, the plaintiff did not demonstrate that his application, in effect, for leave to amend his bill of particulars LEVENTHAL, J.P., MILLER, DUFFY and BARROS, JJ., to include new injuries, which was made on the eve of trial, concur. had any merit (see Canals v. Lai, 132 A.D.3d 626, 627, 17 All Citations N.Y.S.3d 311; Green v. New York City Hous. Auth., 81 A.D.3d 890, 891, 917 N.Y.S.2d 313; Daly–Caffrey v. Licausi, 70 185 A.D.3d 777, 125 N.Y.S.3d 300 (Mem), 2020 N.Y. Slip A.D.3d 884, 885, 895 N.Y.S.2d 197). Op. 03890 End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 Melendez v. Stack, 171 A.D.3d 726 (2019) 98 N.Y.S.3d 106, 2019 N.Y. Slip Op. 02512 trial court may (1) adjourn the trial to another 171 A.D.3d 726 date, (2) mark the case off or strike it from Supreme Court, Appellate Division, the calendar pursuant to statute governing the Second Department, New York. dismissal of abandoned cases, (3) vacate the note of issue pursuant to uniform rule for trial courts Danny MELENDEZ, Appellant, governing the vacating of note of issue, or (4) v. dismiss the complaint pursuant to uniform rule Paula STACK, et al., Respondents, et al., Defendants. for trial courts governing defaults. N.Y. CPLR § 3404(3); N.Y. Comp. Codes R. & Regs. tit. 22, 2018–06492 §§ 202.21(e), 202.27. | (Index No. 11423/13) 2 Cases that cite this headnote | Submitted—December 3, 2018 [2] Pretrial Procedure Delay or failure to | prosecute in general April 3, 2019 Under uniform rule for trial courts governing defaults, a trial court may dismiss an action when Synopsis a plaintiff is unprepared to proceed to trial at Background: Plaintiff brought personal-injury action arising the call of the calendar. N.Y. Comp. Codes R. & from automobile accident. Action was dismissed after Regs. tit. 22, § 202.27. plaintiff's attorney stated that he was unable to proceed with jury selection and that he had issues with his expert witness. 1 Case that cites this headnote The Supreme Court, Suffolk County, Paul J. Baisley, Jr., J., denied plaintiff's motion to vacate dismissal and to restore action to trial calendar. Plaintiff appealed. [3] Judgment Necessity for excuse Judgment Necessity for showing meritorious cause of action or defense [Holding:] The Supreme Court, Appellate Division, held that In order to be relieved of a default entered by plaintiff failed to sufficiently establish unavailability of expert the trial court when a plaintiff is unprepared witness in order to demonstrate a reasonable excuse for why to proceed to trial at the call of the calendar, he was unprepared to proceed to trial on date of jury selection. a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action. N.Y. Comp. Codes Affirmed. R. & Regs. tit. 22, § 202.27. Procedural Posture(s): On Appeal; Motion to Set Aside or 2 Cases that cite this headnote Vacate Dismissal. [4] Judgment Discretion of court West Headnotes (5) While public policy strongly favors the resolution of cases on the merits, a determination of whether an excuse is reasonable, as required [1] Pretrial Procedure Power and discretion to be relieved of default arising from being of court in general unprepared to proceed to trial at call of the Trial Note of issue calendar, lies within the sound discretion of the Trial Striking cause from docket Supreme Court. N.Y. Comp. Codes R. & Regs. tit. 22, § 202.27. Trial Adjournments pending trial Where a case is called for trial and one of the parties fails to appear or is unable to proceed, the © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1 Melendez v. Stack, 171 A.D.3d 726 (2019) 98 N.Y.S.3d 106, 2019 N.Y. Slip Op. 02512 judgment dismissing the complaint and all cross claims [5] Pretrial Procedure Absence or insofar as *727 asserted against them. The court also granted unavailability of party or witness the plaintiff's cross motion for summary judgment on the issue In action to recover damages for personal injuries of liability against the defendants Lauren LaCarrabba and allegedly sustained by plaintiff as a result of Paula Stack (hereinafter together the defendants). a motor vehicle accident, plaintiff failed to sufficiently establish the unavailability of expert On August 13, 2015, the plaintiff filed a note of issue and witness in order to demonstrate a reasonable certificate of readiness for trial. A trial was scheduled to excuse for why he was unprepared to proceed to begin on November 15, 2016. Jury selection was adjourned to trial on date of jury selection, and thus dismissal December 5, 2016, with the trial to commence on December of action was warranted; plaintiff's expert did not 12, 2016. Thereafter, the matter was adjourned to January 17, state that she was unavailable to testify on date 2017, for jury selection, and the trial was scheduled to begin offered by trial court and did not address whether on January 25, 2017. plaintiff's attorney had asked if she was available to testify during the week in which trial court When the parties appeared in court on January 25, 2017, they offered. N.Y. Comp. Codes R. & Regs. tit. 22, § were informed that a trial part was not available that day, but 202.27. that one would be available the following day. The plaintiff's attorney advised the Supreme Court that he was “not prepared to go forward with the trial” on January 26, 2017, because of “some scheduling issues.” The plaintiff's attorney reiterated that he was “not prepared to go forward” and stated that he did **107 In an action to recover damages for personal injuries, not want to “be rushed through the process.” The plaintiff's the plaintiff appeals from an order of the Supreme Court, attorney requested that the court remove the matter from the Suffolk County (Paul J. Baisley, Jr., J.), dated January 12, calendar. The defendants' attorney stated that the defendants 2018. The order denied the plaintiff's motion to vacate the were ready to proceed to trial the following day, and objected dismissal of the action and to restore the action to the trial to the plaintiff's request for an adjournment. The court granted calendar. the plaintiff's request for an adjournment to the extent of directing that the jury be disbanded, and that the parties were Attorneys and Law Firms to return on January 30, 2017, to select a new jury and then The Sachs Firm, P.C. (Alexander J. Wulwick, New York, NY, to proceed to trial on February 1, 2017. The court explicitly of counsel), for appellant. stated that the parties would have as much time as they needed in order to finish the trial. The plaintiff's attorney stated that he Abamont & Associates, Garden City, N.Y. (Evan B. Cohen of was not “prepared to proceed” on January 30, 2017, and again counsel), for respondents. requested that the matter be marked off the calendar and the trial adjourned for 30 to 60 days in order to allow the plaintiff MARK C. DILLON, J.P., CHERYL E. time to “re-prepare.” The court denied the plaintiff's request CHAMBERS, VALERIE BRATHWAITE NELSON, LINDA for any further adjournments. CHRISTOPHER, JJ. On January 30, 2017, the parties appeared for jury selection. The plaintiff's attorney stated that he was unable to proceed **108 DECISION & ORDER with jury selection, and that he had issues with his expert witness. The defendants opposed the plaintiff's application *726 ORDERED that the order is affirmed, with costs. for another adjournment, and moved to dismiss the action pursuant to “the applicable sections of the CPLR” and In April 2013, the plaintiff commenced this action against the 22 NYCRR 202.27(b) based upon the plaintiff's failure to defendants to recover damages for personal injuries allegedly proceed to trial. The court offered the plaintiff the opportunity sustained by the plaintiff as a result of a motor vehicle to pick a jury that day, to start the trial on February 6, 2017, or accident that occurred on August 11, 2010. In an order dated February 7, 2017, and to allow the plaintiff's expert witness to June 3, 2015, the Supreme Court granted the motion of the testify on February 9, 2017. The plaintiff's attorney responded defendants Nancy Hall and Michelle A. Hall for summary © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 Melendez v. Stack, 171 A.D.3d 726 (2019) 98 N.Y.S.3d 106, 2019 N.Y. Slip Op. 02512 that his expert *728 witness was “not available then,” and Dimitriadis v. Visiting Nurse Serv. of N.Y., 84 A.D.3d 1150, that both he and defense counsel had trials “the following 923 N.Y.S.2d 691), a determination of whether an excuse is week.” The court granted the defendants' motion to dismiss reasonable lies within the sound discretion of the Supreme the action, inter alia, pursuant to 22 NYCRR 202.27. Court (see Stein v. Doukas, 157 A.D.3d 743, 744, 68 N.Y.S.3d 495; GMAC Mtge., LLC v. Guccione, 127 A.D.3d 1136, 1138, On or about September 18, 2017, the plaintiff moved to vacate 9 N.Y.S.3d 83). the dismissal of **109 the action and to restore the action to the trial calendar, arguing that he presented a reasonable [5] Here, the Supreme Court providently exercised its excuse for the inability to proceed to trial because of the expert discretion in dismissing the action, because the plaintiff witness's unavailability. Additionally, the plaintiff submitted failed to demonstrate a reasonable excuse for why he was an affidavit from his expert witness, in which the witness unprepared to proceed to trial on January 30, 2017. The stated, inter alia, that she is a licensed psychologist, and that plaintiff's expert did *729 not state that she was unavailable she “was not available due to the scheduling of [her] patients” to testify on February 9, 2017, as offered by the court, and did during the week of January 30, 2017. In an order dated not address whether the plaintiff's attorney had asked if she January 12, 2018, the Supreme Court denied the plaintiff's was available to testify during the second week in February motion, concluding that the plaintiff “failed to demonstrate a (see Spodek v. Lasser Stables, 89 A.D.2d 892, 893, 453 reasonable excuse for his default on January 30, 2017.” As N.Y.S.2d 706). Although an expert witness's unavailability a result, the court did not address whether the plaintiff had a may provide a reasonable excuse for a party's inability to potentially meritorious cause of action. The plaintiff appeals. proceed to trial (see Vera v. Soohoo, 99 A.D.3d at 992, 953 N.Y.S.2d 615; Conde v. Williams, 6 A.D.3d 569, 570, 774 [1] [2] [3] [4] Where a case is called for trial and oneN.Y.S.2d 834), under the circumstances here, it cannot be said of the parties fails to appear or is unable to proceed, the trial that the plaintiff sufficiently established the unavailability of court may “(1) adjourn the trial to another date, (2) mark the the expert witness (see Spodek v. Lasser Stables, 89 A.D.2d case ‘off’ or strike it from the calendar pursuant to CPLR at 893, 453 N.Y.S.2d 706). 3404, (3) vacate the note of issue pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(e), or (4) dismiss Since the plaintiff failed to offer a reasonable excuse for his the complaint ... pursuant to Uniform Rules for Trial Courts default, the issue of whether he had a potentially meritorious (22 NYCRR) § 202.27” (Basetti v. Nour, 287 A.D.2d 126, cause of action need not be addressed (see Lee v. Latendorf, 133, 731 N.Y.S.2d 35). Thus, under 22 NYCRR 202.27, a 162 A.D.3d 1002, 1004, 80 N.Y.S.3d 447). court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar (see Guttilla v. Accordingly, we agree with the Supreme Court's Peppino's Food, Inc., 125 A.D.3d 604, 605, 3 N.Y.S.3d 108; determination to deny the plaintiff's motion to vacate the Aydiner v. Grosfillex, Inc., 111 A.D.3d 589, 589, 975 N.Y.S.2d dismissal of the action and to restore the action to the trial 80; Fink v. Antell, 19 A.D.3d 215, 796 N.Y.S.2d 524). In order calendar. to be relieved of that default, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see Guttilla v. Peppino's Food, DILLON, J.P., CHAMBERS, BRATHWAITE NELSON and Inc., 125 A.D.3d at 605, 3 N.Y.S.3d 108; Vera v. Soohoo, CHRISTOPHER, JJ., concur. 99 A.D.3d 990, 992, 953 N.Y.S.2d 615). While public policy strongly favors the resolution of cases on the merits (see All Citations Fuentes v. Virgil, 88 A.D.3d 643, 930 N.Y.S.2d 479, 480; 171 A.D.3d 726, 98 N.Y.S.3d 106, 2019 N.Y. Slip Op. 02512 End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3 Tunell v Maynard, 209 A.D.3d 515 (2022) 176 N.Y.S.3d 618, 2022 N.Y. Slip Op. 05779 This medical malpractice action, commenced in 2015, was dismissed on the day jury selection was scheduled, based on plaintiffs' default, namely their failure to retain an expert 209 A.D.3d 515, 176 N.Y.S.3d witness for trial (see 22 NYCRR 202.27; e.g. Geffner v Mercy 618, 2022 N.Y. Slip Op. 05779 Med. Ctr., 167 AD3d 571, 573 [2d Dept 2018]; see generally Rivera v Jothianandan, 100 AD3d 542, 542 [1st Dept 2012], **1 Dorian Tunell et al., Appellants, lv denied 21 NY3d 861 [2013]). Supreme Court providently v exercised its discretion when it determined that plaintiffs Michael J. Maynard, M.D., et al., Respondents. did not demonstrate a reasonable excuse for their failure to proceed with trial on the scheduled date. The affirmation of Supreme Court, Appellate Division, plaintiffs' counsel established that despite efforts made prior First Department, New York to the trial date, he was not able to identify and retain an expert 16417, 2021-03302, 805333/15 who would support plaintiffs' case (see CPLR 5015 [a] [1]; October 13, 2022 Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d CITE TITLE AS: Tunell v Maynard 138, 142 [1986]; Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [1st Dept 2011]; Goldman v HEADNOTE Cotter, 10 AD3d 289, 291 [1st Dept 2004]). Plaintiffs' claim of law office failure is not persuasive as there is no indication Judgments that their counsel's efforts *516 to retain a trial expert were Default Judgment inadequate. Although strong public policy supports resolving Vacatur—Medical Malpractice Action Dismissed on Day cases on the merits, here, plaintiffs had more than enough time Jury Selection Scheduled Based on Plaintiff's Failure to to secure an expert witness for trial. Thus, plaintiffs' position Retain Expert Witness for Trial—No Reasonable Excuse that an adjournment or striking the case from the trial calendar would have been more appropriate under these circumstances Mischel & Horn, P.C., New York (Scott T. Horn of counsel), is not persuasive. Since we agree with Supreme Court that for appellants. plaintiffs did not demonstrate a reasonable excuse, we need Mauro Lilling Naparty LLP, New York (Richard J. Montes of not consider whether they demonstrated a meritorious claim counsel), for respondents. (see Eugene Di Lorenzo, Inc., 67 NY2d at 142). Concur— Kapnick, J.P., Webber, Oing, González, Kennedy, JJ. Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 10, 2021, which denied plaintiffs' CPLR 5015 (a) (1) motion to vacate the judgment, same court and Justice, entered August 4, 2020, dismissing the action, Copr. (C) 2023, Secretary of State, State of New York unanimously affirmed, without costs. End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1