De Maio v. Coppola

52 A.D.2d 633, 382 N.Y.S.2d 469, 1976 N.Y. App. Div. LEXIS 12279

Opinion

In a medical malpractice action, defendants appeal from so much of an order of the Supreme Court, Kings County, dated September 19, 1975, as (1) granted the branch of plaintiffs’ motion which sought to set aside the stipulation of discontinuance as to the infant plaintiff and (2) restored the action to the Trial Calendar for jury selection. Order reversed insofar as appealed from, without costs or disbursements, and motion remanded to Special Term for a hearing, before a Judge other than the one who made the order under review, to determine whether the testimony of plaintiff’s expert witness establishes a causal connection between the prescribed drug and the injury; if such a connection is established, the Hearing Judge is to set aside the stipulation as to the infant plaintiff; if not, the motion as to her is to be denied. The above disposition was agreed to by counsel for the parties upon the argument of the appeal. Gulotta, P. J., Martuscello, Latham, Cohalan and Shapiro, JJ., concur.