Konrad v. Mount Sinai Hospital

84 A.D.2d 828, 444 N.Y.S.2d 192, 1981 N.Y. App. Div. LEXIS 16056

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1981
• Status: Published

Opinion

In a medical malpractice action, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kunzeman, J.), dated November 5,1980, as, upon reargument, adhered to the court’s original decision (a) granting the defendant Krawitt’s motion for summary judgment dismissing the complaint as to him, and (b) denying the plaintiffs’ cross motion to enlarge their time to serve and file a bill of particulars. Order reversed insofar as appealed from, without costs or disbursements, order dated July 1, 1980 vacated, motion for summary judgment denied, cross motion granted, and respondent is directed to accept the bill of particulars heretofore served on him, upon condition that plaintiffs’ attorney personally pay $500 to respondent within 20 days after service upon the attorney of a copy of the order to be made hereon, with notice of entry. In the event the condition is not complied with, then order affirmed insofar as appealed from, with $50 costs and disbursements. It is not contested that during the period that the service of the bill of particulars was due, and the motion for preclusion was granted, plaintiffs’ attorney had undergone an operation for cancer of the colon and had continued his practice on a restricted schedule. Under the circumstances, we think it appropriate thát the default be opened, with costs against the attorney personally. Hopkins, J.P., Titone, Rabin and Weinstein, JJ., concur.