Mancus v. County of Nassau

112 A.D.2d 357, 491 N.Y.S.2d 995, 1985 N.Y. App. Div. LEXIS 56490

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 22, 1985
• Status: Published

Opinion

In a medical malpractice action, defendants County of Nassau and the Nassau County Medicál Center appeal from so much of an order of the Supreme Court, Nassau County (Levitt, J.), entered April 10, 1984, as denied that branch of their cross motion which was for summary judgment dismissing the complaint as against them based, inter alia, on plaintiff’s failure to timely supply a further bill of particulars.

Order modified by adding thereto a provision that the denial of that branch of appellants’ cross motion which was for summary judgment is without prejudice to renewal. As so modified, order affirmed insofar as appealed from, with costs to the plaintiff.

Special Term properly deemed served plaintiff’s untimely bill of particulars. The prior order directing plaintiff to serve a further bill of particulars within 30 days was not a conditional order of preclusion. In addition, appellants accepted this bill of particulars despite its untimely service, and did not object until one month later when the codefendants moved to strike the case from the Trial Calendar.

We disagree, however, with Special Term’s determination that there are triable issues of fact. In their reply affidavit appellants raised, for the first time, facts in support of that branch of their cross motion which was for summary judgment.0 Plaintiff did not, therefore, have a chance to respond. Accordingly, we agree with the denial of that branch of appellants’ cross motion which was for summary judgment, but conclude that the denial thereof should have been without prejudice to renewal. Brown, J. P., Rubin, Lawrence and Kunzeman, JJ., concur.