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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))

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