Scarola v. St. Vincent's Medical Center of Richmond

— In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Cusick, J.), dated March 17, 1988, which, upon the denial of her motion for a mistrial and the granting of the defendants’ motion to dismiss the complaint, dismissed the complaint. Ordered that the judgment is affirmed, with one bill of costs. In view of the fact that the plaintiff had previously been granted numerous adjournments of her trial, including two after the attorneys had been sent out for jury selection, on the assertion that her unidentified medical expert was unavailable, the court did not improvidently exercise its discretion in denying another such request made in midtrial for an adjournment so lengthy that it would necessitate a mistrial (see, Spodek v Lasser Stables, 89 AD2d 892; cf., Balogh v H.R.B. Caterers, 88 AD2d 136). We also find that the court properly granted the defendant’s motion to dismiss as it was clear that the plaintiff could not establish a prima facie case of medical malpractice on the facts in the record. Thompson, J. P., Bracken, Kunzeman and Rubin, JJ., concur.