TUNELL v. MAYNARD (2022)

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, unanimously affirmed, without costs.

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 witness for trial (see 22 NYCRR 202.27;  e.g. Geffner v. Mercy Med. Ctr., 167 A.D.3d 571, 573, 89 N.Y.S.3d 265 [2d Dept. 2018];  see generally Rivera v. Jothianandan, 100 A.D.3d 542, 542, 954 N.Y.S.2d 94 [1st Dept. 2012], lv denied 21 N.Y.3d 861, 2013 WL 3215528 [2013]).  Supreme Court providently exercised its discretion when it determined that plaintiffs did not demonstrate a reasonable excuse for their failure to proceed with trial on the scheduled date.  The affirmation of plaintiffs’ counsel established that despite efforts made prior to the trial date, he was not able to identify and retain an expert who would support plaintiffs’ case (see CPLR 5015[a][1];  Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 142, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986];  Chevalier v. 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411, 413–414, 914 N.Y.S.2d 130 [1st Dept. 2011];  Goldman v. Cotter, 10 A.D.3d 289, 291, 781 N.Y.S.2d 28 [1st Dept. 2004]).  Plaintiffs’ claim of law office failure is not persuasive as there is no indication that their counsel's efforts to retain a trial expert were inadequate.  Although strong public policy supports resolving cases on the merits, here, plaintiffs had more than enough time to secure an expert witness for trial.  Thus, plaintiffs’ position that an adjournment or striking the case from the trial calendar would have been more appropriate under these circumstances is not persuasive.  Since we agree with Supreme Court that plaintiffs did not demonstrate a reasonable excuse, we need not consider whether they demonstrated a meritorious claim (see Eugene Di Lorenzo, Inc., 67 N.Y.2d at 142, 501 N.Y.S.2d 8, 492 N.E.2d 116).