Donald J. Scialabba successfully obtained dismissal of oculoplastic surgery claim, in which the patient plaintiff did not hire an attorney but rather handled the matter pro se (on their own behalf).
Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) client, a Westchester County oculoplastic surgeon performed bilateral blepharoplasties on the plaintiff, a 53-year-old male attorney. The plaintiff claimed that the surgery was not performed properly, resulting in entropion, a condition in which the eyelids turn inward causing the eyelashes to irritate the eyes, and epiphora, excessive tearing.
The case was scheduled to proceed to trial on three separate occasions. FKC&S’s expert underwent emergency surgery, leading to the adjournment of the first trial. The second trial date was adjourned for eight months in response to the plaintiff’s pro se application, in which he claimed that his expert was injured in a skiing accident. Three weeks before the third trial date, the plaintiff sought a further adjournment claiming that he found out that his expert had still not recovered and would no longer be able to testify at all, requiring that he retain a new expert.
Scialabba was successful in having the case dismissed as the plaintiff had not provided sufficient substantiation to the court regarding his expert’s physical inability to testify. The court noted that – despite having submitted an affidavit in opposition from an expert to our motion two years earlier – the plaintiff never served a CPLR 3101 Expert Disclosure. The court ruled that the plaintiff had not acted with due diligence in his efforts to be ready for trial.