Aquilia v. Smith

Appellate Division of the Supreme Court of New York

Aquilia v. Smith

145 A.D.2d 319, 534 N.Y.S.2d 987, 1988 N.Y. App. Div. LEXIS 12898

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 6, 1988

StatusPublished

This text of 145 A.D.2d 319 (Aquilia v. Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aquilia v. Smith, 145 A.D.2d 319, 534 N.Y.S.2d 987, 1988 N.Y. App. Div. LEXIS 12898 (N.Y. Ct. App. 1988).

Pincite

Opinion

— Order, Supreme Court, Bronx County (Anita Florio, J.), entered March 18, 1988, which, inter alia, denied defendant Smith’s motion to strike plaintiffs’ action from the Trial Calendar or, in the alternative, to stay the medical malpractice panel, on the ground that defendant Smith had failed to comply with a prior order of the court dated September 25, 1987, by not designating doctors in Bronx County to conduct the physical examination of plaintiff Joseph Aquilia, unanimously modified, on the law and the facts, without costs, to grant the motion conditionally unless plaintiff Joseph Aquilia shall submit to medical examination in Bronx County by not more than two designated physicians [320]*320within 60 days after service of a copy of the order to be entered hereon with notice of entry together with appropriate notice of the physicians selected and the time(s) and place(s) where plaintiff must appear, and otherwise affirmed. Defendant shall serve the foregoing not later than 20 days from the date of this order.

In this medical malpractice action defendant has been dilatory in designating his examining physicians, and plaintiff has been more than captious in frustrating the progress of the action by asserting these minor delays to the fullest technical extent. The disposition we reach is designed to elevate substance over form, and to avoid the needless prejudice to defendant which denial of a complete physical examination of plaintiff would undoubtedly entail.

The balance of the order appealed from, which withheld an award of sanctions to either party, is affirmed. Concur — Kassal, J. P., Rosenberger, Ellerin and Wallach, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

— Order, Supreme Court, Bronx County (Anita Florio, J.), entered March 18, 1988, which, inter alia, denied defendant Smith’s motion to strike plaintiffs’ action from the Trial Calendar or, in the alternative, to stay the medical malpractice panel, on the ground that defendant Smith had failed to comply with a prior order of the court dated September 25, 1987, by not designating doctors in Bronx County to conduct the physical examination of plaintiff Joseph Aquilia, unanimously modified, on the law and the facts, without costs, to grant the motion conditionally unless plaintiff Joseph Aquilia shall submit to medical examination in Bronx County by not more than two designated physicians [320]*320within 60 days after service of a copy of the order to be entered hereon with notice of entry together with appropriate notice of the physicians selected and the time(s) and place(s) where plaintiff must appear, and otherwise affirmed. Defendant shall serve the foregoing not later than 20 days from the date of this order.

In this medical malpractice action defendant has been dilatory in designating his examining physicians, and plaintiff has been more than captious in frustrating the progress of the action by asserting these minor delays to the fullest technical extent. The disposition we reach is designed to elevate substance over form, and to avoid the needless prejudice to defendant which denial of a complete physical examination of plaintiff would undoubtedly entail.

The balance of the order appealed from, which withheld an award of sanctions to either party, is affirmed. Concur — Kassal, J. P., Rosenberger, Ellerin and Wallach, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

145 A.D.2d 319, 534 N.Y.S.2d 987, 1988 N.Y. App. Div. LEXIS 12898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aquilia-v-smith-nyappdiv-1988.