Our meme is that legal malpractice is ubiquitous and may arise in almost any setting. Here, in a medical malpractice case we see what could have been a nasty legal malpractice had the AD no intervened. In Westchester, cases go the the Trial Assignment Part which has broad discretion in the scheduling of trials. There is great tension in the scheduling of trials. On the one hand, attorneys need to fully book their time in order to make a living. On the other hand, there are at least two and often more law firms all booking cases (plaintiff and defense) and trying to make a living. In order to try a case, one needs witnesses, and experts each have their own schedules, with vacations and professional responsibilities and other trials. Its a challenge to get a case tried. Cases get dismissed when the process gets too hard, and parties are injured. Legal mal often follows.
In Vera v Soohoo 2012 NY Slip Op 07104 Decided on October 24, 2012 Appellate Division, Second Department we see how one effort came apart.
"On January 4, 2010, David Pierguidi of The Pagan Law Firm, P.C., appeared on behalf of the plaintiff, and notified the Supreme Court that the plaintiff’s expert, who was of paramount importance to the plaintiff’s case, was unavailable to testify. Counsel provided the Supreme Court with an affidavit from the expert, in which he stated that he would be away on vacation from January 5 through January 13, and that the vacation could not be canceled. Counsel informed the Supreme Court that the parties had conferred and would all be available to try the case in the middle of February. The Supreme Court, after noting that the case was eight years old, offered to adjourn the matter until January 14. Counsel for Malhotra inquired as to how long the plaintiff’s case would last, noting that he had a case on January 25, in Rockland County, and a case in federal court scheduled for February 1. The plaintiff’s counsel responded that his case alone would take three days to try, and alerted the court that his firm had a conflict with another case that was being tried in Kings County. In response, the Supreme Court directed the law clerk to read the procedural history of the case into the record. While she was still doing so, the Supreme Court cut her off, stating, "that’s enough." Then, without further comment or questions about plaintiff’s counsel’s claimed scheduling conflict, the Supreme Court, sua sponte, dismissed the action pursuant to 22 NYCRR 202.27, stating "this is a fault [sic] dismissal." The court subsequently issued a written order indicating that the action was being dismissed for counsel’s failure to proceed to trial on January 4, 2010.
The plaintiff timely moved to vacate the order and restore the action to the action to the trial calendar. In the moving papers, the plaintiff’s counsel affirmed that the trial date offered by the Supreme Court, January 14, 2010, conflicted with a case entitled Bryan v Hurwitz that his firm was scheduled to try on January 19, 2010, and that Bryan v Hurwitz had a 1999 index number. In an order dated June 4, 2010, the Supreme Court denied the plaintiff’s motion, finding that, while she had a potentially meritorious cause of action, she had failed to provide a reasonable excuse for her inability to proceed on January 4, 2010, or January 14, 2010.
Under 22 NYCRR 202.27, a court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar (see Fink v Antell, 19 AD3d 215; Johnson v Brooklyn Hosp. Ctr., 295 AD2d 567, 569; Farley v Danaher Corp., 295 AD2d 559, 560). In order 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 e.g. Felsen v Stop & Shop Supermarket Co., LLC, 83 AD3d 656).
Here, the plaintiff’s proffered reason for being unable to proceed on January 4, 2010, was that her expert was unavailable to testify because of a scheduled vacation between January 5 and January 13, 2010, which the expert could not cancel. That excuse was a reasonable one (see Vorontsova v Priolo, 61 AD3d 556, 556-557; Conde v Williams, 6 AD3d 569, 570; Goichberg v Sotudeh, 187 AD2d 700, 701; cf. Kandel v Hoffman, 309 AD2d 904; Spodek v Lasser Stables, 89 AD2d 892). Indeed, the Supreme Court accepted that excuse, as evidenced by its offer during the colloquy on January 4 to adjourn the trial to January 14. In addition, in its order denying the plaintiff’s motion to vacate the default, the Supreme Court stated that it had been willing to adjourn the trial to accommodate the expert’s vacation, tacitly acknowledging that it had concluded that the excuse was reasonable. Nevertheless, it held in that order that the plaintiff’s action should be dismissed, in part, because the record was silent as to when the plaintiff’s counsel informed his expert of the trial date, when the expert scheduled his vacation, and when counsel learned of the expert’s vacation schedule. However, that claimed justification for dismissing the plaintiff’s action, which is adopted by the dissent, is not supported by the record since the Supreme Court never mentioned any of those enumerated deficiencies during the colloquy on January 4, 2010.
Even accepting the post hoc conclusion that the action was validly dismissed for the failure to proceed on January 14, a reasonable excuse for that failure was provided. The plaintiff’s counsel explained that his firm had another trial involving a medical malpractice claim scheduled in Kings County for January 19, 2010, that the case had been marked as final, and that it was older than this case. The plaintiff’s counsel noted that, in the instant action, the presentation of his case alone would take three days, and, thus, depending on the length of the case presented by the Hospital and Malhotra, there was the potential for a conflict between the Kings County case and this case. Thus, it is evident from the record that counsel was trying to avoid the "overbooking of cases" (Pichardo-Garcia v Josephine’s Spa Corp., 91 AD3d 413, 414 [internal quotation marks omitted]; see Perez v New York City Hous. Auth., 47 AD3d 505, 505). While we agree with the dissent that there was no actual conflict on January 14, the point is that there was the potential for conflict on January 19 when the two trials might overlap, and the plaintiff’s counsel was attempting to avoid creating a conflict for his firm. Moreover, contrary to our dissenting colleague’s assertion, counsel indicated that The Pagan Law Firm, P.C., consisted of only three lawyers, and that William Pagan was the only attorney from the firm qualified to try medical malpractice cases. The dissent characterizes this contention as "unsubstantiated and self-serving after-the-fact," since it was not made until counsel for the plaintiff submitted reply papers on the motion to vacate. However, this contention was made in response to arguments advanced by the Hospital and Malhotra, which is the proper function of reply papers (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678; Lebar Constr. Corp. v HRH Constr. Corp., 292 AD2d 506, 507). Therefore, under the circumstances of this case, we conclude that the plaintiff provided a reasonable excuse for the inability to proceed on January 4, 2010, and January 14, 2010 (see Mayo v New York Tel. Co., 175 AD2d 390, 391; see also Krivda v Liberty Lines Express, Inc., 27 AD3d 260, 261; cf. McKenna v Connors, 36 AD3d 1062, 1063).