Fassnacht v. Hartman

67 A.D.2d 676, 412 N.Y.S.2d 179, 1979 N.Y. App. Div. LEXIS 10263

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1979
• Status: Published

Opinion

— In a medical malpractice action, defendant appeals from an order of the Supreme Court, Queens County, dated April 27, 1978, which denied his motion to either dismiss or correct the complaint, and granted plaintiff’s cross motion requiring him to appear for an examination before trial. Order reversed, on the law, with $50 costs and disbursements, the cross motion is denied and the branch of the motion which sought to dismiss the complaint is granted. Plaintiff is granted leave to replead, if she be so advised, within 20 days after service upon her of a copy of the order to be entered herein, together with notice of entry thereof. In failing to particularize the material elements of plaintiff’s claim, the complaint violated the requirements of CPLR 3013. It omits any reference to times or types of treatment; it fails to assert any facts supporting a claim for wrongful death; it fails to separately state and number its various causes of action, as required by CPLR 3014; and it fails to include the statement required by CPLR 3017 (subd [c]) that the damages sought exceed the jurisdictional limits of all lower courts. Furthermore, to require defendant to submit to an examination before trial at this stage and to bring with him all "relevant” records, constitutes a waiver of his right, under CPLR 3106, of priority of deposition, as well as his entitlement to a bill of particulars before he appears for such an examination. Hopkins, J. P., Titone, O’Connor and Cohalan, JJ., concur.