De Francesco v. Pelham Bay General Hospital

44 A.D.2d 660, 354 N.Y.S.2d 121, 1974 N.Y. App. Div. LEXIS 5317

Opinion

Order, Supreme Court, Bronx County, entered October 5, 1973, unanimously reversed, on the law and as a matter of discretion, and motion denied. Appellants shall recover of respondents one bill of $40 costs and disbursements. Plaintiff was hospitalized and operated on in 1965. She started this action for malpractice in 1967. During the course of the litigation there were ■ three orders of preclusion entered due to plaintiff’s failure to serve proper bills of particulars and supplemental bills. The actión was not placed on the calendar until a 45-day notice was served. A certificate of readiness was filed. This motion sought leave to file an amended complaint on a different theory of negligence, with a substantial increase in the ad damnum clause, relief from the orders of preclusion and an examination of the- defendants. Omitting consideration that one Special Term does not vacate an order of another Special Term, there were no good grounds shown for vacating the orders of preclusion (Williams v. Mallinckrodt Chem. Works, 42 A D 2d 1044; Abbinanti v. Baisch, 41 A D 2d 693). Laches precluded the amendment of- the complaint and no valid reason was given for an examination at this stage of the proceedings. The sweeping relief granted was an abuse of discretion. Concur—Nunez, J. P., Kupferman, Steuer, Tilzer and Lane, JJ.