McNamara v. Medical Associates

86 A.D.2d 815, 452 N.Y.S.2d 586, 1982 N.Y. App. Div. LEXIS 15439

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 1982
• Status: Published

Opinion

Order, Supreme Court, New York County (Evans, J.), entered November 20, 1980, affirmed, without costs. The suit, initiated October 18, 1978, is for medical malpractice and for wrongful death of plaintiff’s decedent, which occurred November 16, 1976. Defendants-appellants’ motion was for dismissal of the malpractice causes as time barred; further, that plaintiff administratrix’ unmitigated failure to serve a demanded bill of particulars required unconditional preclusion in the cause for wrongful death. Special Term’s articulated reason for denial of both branches of the motion was that plaintiff averred the date of final treatment to have been later than that claimed by defendants, as to which circumstance plaintiff, being “without personal knowledge, plaintiff * * * should not be required to accept without further inquiry the defendant’s [szc] statement of the last date of treatment.” The denial, accordingly, was not absolute, but permitted renewal after deposition of defendants, directed to take place without delay. While we do not fault this exercise of discretion, we must emphasize that forbearance has its limits. The examination directed by the order we affirm is to be scheduled for a date no earlier than 20 days nor later than 30 from the date of the order entered hereon, to be selected by defendants’ counsel, and of which at least five days’ written notice shall be given to his adversary, and shall proceed to completion without undue delay. Concur — Kupferman, J. P., Sandler, Markewich, Lupiano and Fein, JJ.