Wade Clark Mulcahy LLP

<p style="text-align: justify;">Just yesterday in Kings County Supreme Court, a plaintiff's attorney expressed an inability to proceed with jury selection, while masked, due to inability to breathe.  Counsel asked for an adjournment of trial until June.   Not only did the Court deny the request, but dismissed the lawsuit outright due to counsel's inability to proceed.   The transcript of the argument which lead to the dismissal can be read <a href="https://www.wcmlaw.com/wp-content/uploads/2021/03/COVID-Dismissal.pdf">here</a>.</p>
<p style="text-align: justify;">Dismissal of a complaint is a drastic remedy.   Here, the Court had to weigh the expressed health issues of counsel against the Court's necessity to abide by COVID-19 masking protocols, and the fact that counsel apparently had ample notice of the trial date, which prompted denial of the adjournment request.</p>
<p style="text-align: justify;">We expect much to be written about this decision, and the (likely) eventual appeal.   For now, this decision provides guidance for practitioners in NY - if your case is marked "ready" for trial, be prepared to pick a jury, while masked, or face the consequences.  And an ancillary point - if you are not prepared to proceed, due to health concerns or otherwise, making that clear in advance of formal jury selection would be a best practice.</p>
<p style="text-align: justify;">Please email <a href="mailto:bgibbons@wcmlaw.com">Brian Gibbons</a> with any questions.</p>
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