Leon v. St. Vincent De Paul Residence

Appellate Division of the Supreme Court of New York

Leon v. St. Vincent De Paul Residence

56 A.D.2d 265, 866 N.Y.S.2d 664

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 6, 2008

StatusPublished

This text of 56 A.D.2d 265 (Leon v. St. Vincent De Paul Residence) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Leon v. St. Vincent De Paul Residence, 56 A.D.2d 265, 866 N.Y.S.2d 664 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, Bronx County (Sallie ManzanetDaniels, J.), entered on or about January 26, 2008, which, insofar as appealed from as limited by the briefs in this action for medical malpractice, denied defendant’s motion to vacate the note of issue and extend its time to move for summary judgment, unanimously affirmed, without costs.

The motion court properly exercised its discretion in denying defendant’s motion, which was made seven months after the note of issue was filed and based on the assertion that the note of issue inaccurately stated that all discovery was complete when defendant had not taken plaintiffs deposition or con[266]*266ducted an independent medical examination of him. As the court recognized, a deposition of plaintiff would be futile considering that he suffered from advanced dementia, and the record shows that defendant deposed plaintiffs daughter, who held his power of attorney and was involved in his life and health care. Furthermore, defendant waived its right to any other discovery by failing to comply with the discovery deadlines set forth in the court’s compliance order, which contained a waiver clause (see Quintanna v Rogers, 306 AD2d 167 [2003]; Mateo v City of New York, 282 AD2d 313 [2001]). Concur—Andrias, J.P., Saxe, Gonzalez, Catterson and Acosta, JJ.

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Order, Supreme Court, Bronx County (Sallie ManzanetDaniels, J.), entered on or about January 26, 2008, which, insofar as appealed from as limited by the briefs in this action for medical malpractice, denied defendant’s motion to vacate the note of issue and extend its time to move for summary judgment, unanimously affirmed, without costs.

The motion court properly exercised its discretion in denying defendant’s motion, which was made seven months after the note of issue was filed and based on the assertion that the note of issue inaccurately stated that all discovery was complete when defendant had not taken plaintiffs deposition or con[266]*266ducted an independent medical examination of him. As the court recognized, a deposition of plaintiff would be futile considering that he suffered from advanced dementia, and the record shows that defendant deposed plaintiffs daughter, who held his power of attorney and was involved in his life and health care. Furthermore, defendant waived its right to any other discovery by failing to comply with the discovery deadlines set forth in the court’s compliance order, which contained a waiver clause (see Quintanna v Rogers, 306 AD2d 167 [2003]; Mateo v City of New York, 282 AD2d 313 [2001]). Concur—Andrias, J.P., Saxe, Gonzalez, Catterson and Acosta, JJ.

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Bluebook (online)

56 A.D.2d 265, 866 N.Y.S.2d 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leon-v-st-vincent-de-paul-residence-nyappdiv-2008.

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