Britto v. St. Francis Hospital

77 A.D.2d 854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 26, 1980
• Status: Published

Opinion

Order, Supreme Court, New York County, entered October 15, 1979 denying the motion and cross motion of the defendants for a final order of preclusion for the failure of plaintiff to serve a bill of particulars in compliance with conditional orders of preclusion previously entered, and for summary judgment dismissing the complaint for plaintiff’s failure to comply with said conditional orders, modified to deny the motion and cross motion without costs, upon condition that plaintiff’s counsel personally pay $500 costs to each appellant within 20 days after service of a copy of this court’s order, and upon failure to make such payment the motion and cross motion are both granted with costs to the appellant. In this malpractice action, defendant doctor moved, and defendant hospital cross moved for final orders of preclusion and for summary judgment upon the basis of plaintiff’s failure to comply with prior conditional orders of preclusion. Plaintiff then served his bill of particulars. We have concluded that Special Term abused its discretion only insofar as it unconditionally directed that defendants accept such bill of particulars. Sanctions should have been imposed. Defendants chose not to rely upon the prior conditional orders of preclusion. On their motion and cross motion for a final order of preclusion Special Term was empowered to relieve plaintiff of his default. In view of the extensive delay we have directed that plaintiff’s attorney personally pay the sum of $500 to each appellant. Concur—Fein, J. P., Ross, Silverman and Carro, JJ.