You are here: / / SUPREME COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING THE COMPLAINT...
,

SUPREME COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING THE COMPLAINT WHEN PLAINTIFF WAS NOT READY FOR TRIAL AND REFUSING TO ALLOW THE TESTIMONY OF A ‘SUBSTITUTE EXPERT,’ DISMISSAL WAS NOT ON THE MERITS AND THEREFORE THE DISMISSAL SHOULD NOT HAVE BEEN ‘WITH PREJUDICE,’ ALTHOUGH NO APPEAL LIES FROM A JUDGMENT ENTERED UPON DEFAULT, THE UNDERLYING ISSUES MAY BE REVIEWED (FIRST DEPT).

The Second Department determined; (1) although no appeal lies from a judgment entered by default against the appealing party the contested issues may be reviewed; (2) Supreme Court did not abuse its discretion in dismissing the complaint because plaintiff was not ready to proceed; (3) Supreme Court did not abuse its discretion in refusing to allow plaintiff to present a “substitute expert” when the noticed expert could not appear at trial; (4) Supreme Court should not have dismissed the action with prejudice because the dismissal was not on the merits:

Although no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review ” those matters which were the subject of contest before the Supreme Court'” … . …

“Pursuant to 22 NYCRR 202.27(b), a court has the discretion to direct dismissal of a complaint where the plaintiff fails to appear or is not ready to proceed” … . Here, the plaintiff was not ready to proceed to trial due to the unavailability of her expert. …

Pursuant to CPLR 3101(d)(1)(i), “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph” … . “A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of the court” … . Here, since the plaintiff offered only a vague excuse for the unavailability of the intended expert, without offering any details as to when the plaintiff learned of that expert’s unavailability, she failed to establish good cause to offer the testimony of the “substitute expert” … . Moreover, the plaintiff had previously been unprepared to proceed with trial due to, inter alia, the unavailability of experts … .

… “[S]ince dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits,” the dismissal should have been without prejudice … . Geffner v Mercy Med. Ctr., 2018 NY Slip Op 08280, Second Dept 12-5-18

CIVIL PROCEDURE (SUPREME COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING THE COMPLAINT WHEN PLAINTIFF WAS NOT READY FOR TRIAL AND REFUSING TO ALLOW THE TESTIMONY OF A ‘SUBSTITUTE EXPERT,’ DISMISSAL WAS NOT ON THE MERITS AND THEREFORE THE DISMISSAL SHOULD NOT HAVE BEEN ‘WITH PREJUDICE,’ ALTHOUGH NO APPEAL LIES FROM A JUDGMENT ENTERED UPON DEFAULT, THE UNDERLYING ISSUES MAY BE REVIEWED (FIRST DEPT))/APPEALS (SUPREME COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING THE COMPLAINT WHEN PLAINTIFF WAS NOT READY FOR TRIAL AND REFUSING TO ALLOW THE TESTIMONY OF A ‘SUBSTITUTE EXPERT,’ DISMISSAL WAS NOT ON THE MERITS AND THEREFORE THE DISMISSAL SHOULD NOT HAVE BEEN ‘WITH PREJUDICE,’ ALTHOUGH NO APPEAL LIES FROM A JUDGMENT ENTERED UPON DEFAULT, THE UNDERLYING ISSUES MAY BE REVIEWED (FIRST DEPT))

You might also like
THE PROPERTY OWNER SUED THE VILLAGE ALLEGING THE VILLAGE BREACHED A CONTRACT IN FAILING TO RE-ZONE THE PROPERTY TO ALLOW DEVELOPMENT; A MUNICIPALITY DOES NOT HAVE THE AUTHORITY TO ENTER A CONTRACT WHICH CONTROLS ITS LEGISLATIVE POWERS (SECOND DEPT).
PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED.
Leave to File Late Notice of Claim Should Have Been Granted
Potential Use of Condemned Property In Conjunction with Adjoining Land Properly Considered in the Valuation of the Taking/Statutory 6% Interest Applies in Condemnation Proceedings
LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT).
PETITION SIGNATURES SHOULD NOT HAVE BEEN INVALIDATED ON THE GROUND THAT A VOTER’S ADDRESS ON THE PETITION WAS DIFFERENT FROM THAT VOTER’S ADDRESS ON THE VOTER REGISTRATION RECORD (SECOND DEPT).
DEFENDANT SHOULD NOT HAVE BEEN DENIED ACCESS TO COMPLAINANT’S MENTAL HEALTH RECORDS AND SHOULD NOT HAVE BEEN PREVENTED FROM CROSS-EXAMINING COMPLAINANT ABOUT HER MENTAL HEALTH; CONVICTION REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).
PLAINTIFF ALLEGED DEFENDANT WAS LIABLE FOR HER BABY’S BRAIN DAMAGE BECAUSE DEFENDANT’S AMBULANCE BROKE DOWN ON THE WAY TO THE HOSPITAL, CAUSING A DELAY IN DELIVERY; DEFENDANT MUNICIPALITY, WHICH PROVIDED THE AMBULANCE, WAS ENGAGED IN A GOVERNMENTAL FUNCTION AND THERE WAS NO SPECIAL RELATIONSHIP WITH PLAINTIFF; THE MUNICIPALITY CAN NOT BE HELD LIABLE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS... A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS...