Ferro v. Lee

Appellate Division of the Supreme Court of New York

Ferro v. Lee

48 A.D.3d 412, 849 N.Y.S.2d 795

Appellate Division of the Supreme Court of the State of New York·Decided February 5, 2008·Published

Opinion

In an action to recover damages for medical malpractice and wrongful death, etc., the defendant appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated November 2, 2006, which denied his motion to dismiss the complaint.

Ordered that the order is affirmed, with costs.

A trial court has broad discretion in supervising discovery (see generally Vasile v Chisena, 272 AD2d 610 [2000]). Here, since the defendant did not establish willful noncompliance with CPLR 3101 (d) on the plaintiffs’ part, the Supreme Court providently exercised its discretion in permitting the plaintiffs to obtain a new expert and adjourning the trial in this matter (see Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710 [2007]; Shopsin v Siben & Siben, 289 AD2d 220 [2001]; cf. Gayz v Kirby, 41 AD3d 782 [2007]). Further, contrary to the defendant’s contention, the court properly concluded that dismissal based on the plaintiffs alleged noncompliance with CPLR 3012-a was not warranted (see Casiano v New York Hospital-Cornell Med. Ctr., 169 AD2d 806 [1991]).

Accordingly, the Supreme Court properly denied the defendant’s motion to dismiss the complaint. Mastro, J.P, Santucci, Balkin and Dickerson, JJ., concur.

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In an action to recover damages for medical malpractice and wrongful death, etc., the defendant appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated November 2, 2006, which denied his motion to dismiss the complaint.

Ordered that the order is affirmed, with costs.

A trial court has broad discretion in supervising discovery (see generally Vasile v Chisena, 272 AD2d 610 [2000]). Here, since the defendant did not establish willful noncompliance with CPLR 3101 (d) on the plaintiffs’ part, the Supreme Court providently exercised its discretion in permitting the plaintiffs to obtain a new expert and adjourning the trial in this matter (see Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710 [2007]; Shopsin v Siben & Siben, 289 AD2d 220 [2001]; cf. Gayz v Kirby, 41 AD3d 782 [2007]). Further, contrary to the defendant’s contention, the court properly concluded that dismissal based on the plaintiffs alleged noncompliance with CPLR 3012-a was not warranted (see Casiano v New York Hospital-Cornell Med. Ctr., 169 AD2d 806 [1991]).

Accordingly, the Supreme Court properly denied the defendant’s motion to dismiss the complaint. Mastro, J.P, Santucci, Balkin and Dickerson, JJ., concur.

Ferro v. Lee, 48 A.D.3d 412, 849 N.Y.S.2d 795 (N.Y. Ct. App. 2008).

Pincite

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Opinion

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