Carter v. Isabella Geriatric Center, Inc.

Appellate Division of the Supreme Court of New York

Carter v. Isabella Geriatric Center, Inc.

60 A.D.3d 520, 875 N.Y.S.2d 73

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

DecidedMarch 19, 2009

StatusPublished

Cited by1 cases

This text of 60 A.D.3d 520 (Carter v. Isabella Geriatric Center, Inc.) 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

Carter v. Isabella Geriatric Center, Inc., 60 A.D.3d 520, 875 N.Y.S.2d 73 (N.Y. Ct. App. 2009).

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Opinion

— Appeal from an order, Supreme Court, New York County (Sheila Abdus-Salaam, [521]*521J.), entered on or about January 10, 2008, which precluded plaintiff from offering expert testimony at trial based on her failure to provide sufficient expert disclosure and, based on that preclusion, dismissed the complaint, unanimously dismissed, without costs.

The order on appeal, which was issued at a conference, is not appealable as of right because it did not decide a motion made on notice (see CPLR 5701 [a] [2]; Sidelev v Tsal-Tsalko, 52 AD3d 398 [2008]; Turbel v Societe Generale, 37 AD3d 187 [2007]). We decline to grant leave to appeal (see CPLR 5701 [c]) because the record is not sufficiently developed to permit us to consider the issues raised by the parties. Notably, neither party made arguments nor submitted evidence before Supreme Court touching on the fact-based issue of which of plaintiffs claims sound in medical malpractice and which sound in ordinary negligence (see Weiner v Lenox Hill Hosp., 88 NY2d 784, 787-788 [1996]). Relatedly, neither party made arguments nor submitted evidence addressing which of plaintiffs claims need to be supported by expert testimony and which do not. Plaintiffs remedy is a motion to vacate the order precluding her from calling expert witnesses and dismissing the complaint. Concur—Mazzarelli, J.P., Gonzalez, Sweeny, McGuire and DeGrasse, JJ.

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— Appeal from an order, Supreme Court, New York County (Sheila Abdus-Salaam, [521]*521J.), entered on or about January 10, 2008, which precluded plaintiff from offering expert testimony at trial based on her failure to provide sufficient expert disclosure and, based on that preclusion, dismissed the complaint, unanimously dismissed, without costs.

The order on appeal, which was issued at a conference, is not appealable as of right because it did not decide a motion made on notice (see CPLR 5701 [a] [2]; Sidelev v Tsal-Tsalko, 52 AD3d 398 [2008]; Turbel v Societe Generale, 37 AD3d 187 [2007]). We decline to grant leave to appeal (see CPLR 5701 [c]) because the record is not sufficiently developed to permit us to consider the issues raised by the parties. Notably, neither party made arguments nor submitted evidence before Supreme Court touching on the fact-based issue of which of plaintiffs claims sound in medical malpractice and which sound in ordinary negligence (see Weiner v Lenox Hill Hosp., 88 NY2d 784, 787-788 [1996]). Relatedly, neither party made arguments nor submitted evidence addressing which of plaintiffs claims need to be supported by expert testimony and which do not. Plaintiffs remedy is a motion to vacate the order precluding her from calling expert witnesses and dismissing the complaint. Concur—Mazzarelli, J.P., Gonzalez, Sweeny, McGuire and DeGrasse, JJ.

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Bluebook (online)

60 A.D.3d 520, 875 N.Y.S.2d 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-isabella-geriatric-center-inc-nyappdiv-2009.