Tunell v. Maynard
Docket: Index No. 805333/15 Appeal No. 16417 Case No. 2021-03302
Court: Appellate Division of the Supreme Court of the State of New York; October 13, 2022; New York; State Appellate Court
Original Court Document: View Document
Dorian Tunell and others (plaintiffs-appellants) appealed a decision from the Supreme Court, New York County, which denied their motion to vacate a judgment that dismissed their medical malpractice action against Michael J. Maynard, M.D., and others (defendants-respondents). The dismissal occurred on August 4, 2020, due to the plaintiffs' default in failing to secure an expert witness for trial, a requirement under 22 NYCRR 202.27. The Appellate Division, First Department, affirmed the lower court's ruling, determining that the plaintiffs did not provide a reasonable excuse for their inaction. Despite the plaintiffs' counsel's claims of efforts to retain an expert, the court found no indication of inadequate attempts. The plaintiffs had ample time to secure an expert before the trial date, and their assertion that an adjournment would have been more suitable was deemed unpersuasive. The court concluded that since the plaintiffs failed to demonstrate a reasonable excuse for their failure to proceed, it was unnecessary to assess whether they had a meritorious claim. The decision was entered on October 13, 2022, with no costs awarded.