Masik v. Lutheran Medical Center

92 A.D.3d 732, 939 N.Y.2d 862

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 2012
• Status: Published

Opinion

Despite the failure of the defendant Nawaiz Ahmad to appear for a court-ordered deposition, the Supreme Court providently exercised its discretion in declining to impose the drastic remedy of striking his answer (see CPLR 3126 [3]; Deans v Jamaica Hosp. Med. Ctr., 64 AD3d 744 [2009]; see also Pirro Group, LLC v One Point St., Inc., 71 AD3d 654 [2010]; Novick v DeRosa, 51 AD3d 885 [2008]). Skelos, J.E, Leventhal, Lott and Miller, JJ., concur.

Motion by the defendant Nawaiz Ahmad to dismiss an appeal from an order dated June 4, 2010, on the ground that it has been rendered academic.

Upon the papers filed in support of the motion, upon the papers filed in opposition thereto, and upon the submission of the appeal; it is

Ordered that those branches of the motion which are to dismiss the appeal from so much of the order as granted those branches of the cross motion of the defendant Nawaiz Ahmad which were to compel the plaintiff to serve a supplemental bill of particulars and, in effect, to direct the plaintiff to obtain a copy of his medical records from Ukraine and provide the same to the other parties are denied as academic in light of our determination of the appeal (see Masik v Lutheran Med. Ctr., 92 AD3d 733 [2012] [decided herewith]), and the motion is otherwise denied. Skelos, J.E, Leventhal, Lott and Miller, JJ., concur.