Berman v. Brunswick Hospital Center

94 A.D.2d 736, 462 N.Y.S.2d 485, 1983 N.Y. App. Div. LEXIS 18181

Opinion

— In a medical malpractice action to recover damages for wrongful death, etc., defendant Desner appeals from an order of the Supreme Court, Nassau County (Roncallo, J.), dated October 7, 1982, which (1) denied his motion for summary judgment and (2) granted plaintiff’s cross motion to vacate a prior order of preclusion. Order reversed, on the law, with costs, appellant’s motion for summary judgment is granted and plaintiff’s cross motion is denied.. Appellant demanded a bill of particulars on October 6, 1981 and, when no response was received, he obtained an order of preclusion, dated July 2, 1982, without opposition. In response to appellant’s subsequent motion for summary judgment, plaintiff cross-moved to vacate the preclusion order, proffering the illness of her attorney as an excuse for the delay. Although illness of an attorney may constitute a reasonable excuse for delay in serving a bill of particulars, the illness of plaintiff’s attorney began in the latter part of June, 1982, and could therefore not excuse the eight-month delay which had already occurred prior to the onset of the illness (see Hargett v Health & Hosps. Corp. of City ofN. Y., 88 AD2d 633; Alaimo v D&F Tr., 35 AD2d 776; Valentin v Ina Holding Corp., 20 AD2d 525). Furthermore, there was no affidavit from a medical expert demonstrating the existence of a meritorious cause of action (see Ferrigno v St. Charles Hosp., 86 AD2d 594; Sussman v Franklin Gen. Hosp., 77 AD2d 567). Accordingly, it was an abuse of discretion to have denied appellant’s motion and granted the cross motion. Titone, J. P., Lazer, Thompson and Weinstein, JJ., concur.