Hatch v. St. Joseph's Hospital

93 A.D.2d 999, 461 N.Y.S.2d 630, 1983 N.Y. App. Div. LEXIS 17923

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 1983
• Status: Published

Opinion

— Order unanimously reversed, without costs, motion granted and complaint dismissed against defendant St. Joseph’s Hospital. Memorandum: Special Term erred in denying defendant hospital’s motion to dismiss based upon plaintiff’s failure to comply with a demand for a bill of particulars and a conditional preclusion order. Plaintiffs bear a “ ‘heavy burden of explanation’ ” for their neglect and are not entitled to relief from the preclusion order absent “exceptional and extraordinary circumstances”. (Suggs v Hrabb, 91 AD2d 819; Spencer v Holt, 86 AD2d 981.) The explanation of counsel that plaintiff Ruth E. Hatch was unable to assist him in the preparation of the bill of particulars because of her mental collapse does not address the reason for the eight-month delay in obtaining the medical records needed to draft this pleading. Plaintiffs have proffered no excuse for the delay in obtaining the records and the record permits no other inference than that the delay was the result of “law office failure” (see Barasch v Micucci, 49 NY2d 594). Furthermore, plaintiffs failed to make the required showing of merit of their causes of action (see Suggs v Hrabb, supra). The affidavit of plaintiffs’ counsel was legally insufficient, and the verified pleadings together with the proposed bill of particulars do not establish the existence of a meritorious claim (see Tonello v Carborundum Co., 91 AD2d 1169). (Appeal from order of Supreme Court, Oswego County, Murphy, J. — dismiss action.) Present — Doerr, J. P., Denman, Boomer, Green and Schnepp, JJ.