Montana v. North Shore University Hospital

152 A.D.2d 545, 543 N.Y.S.2d 958, 1989 N.Y. App. Div. LEXIS 9642

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1989
• Status: Published

Opinion

In a medical malpractice action, the defendants Irwin R. Cohen and Adolf Singer separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Nassau County (Roberto, J.), dated May 10, 1988, as, upon granting the plaintiff’s motion for "renewal and/or reargument” of their respective motion and cross motion, inter alia, to strike the plaintiffs amended bill of particulars, vacated a prior order, entered March 9, 1988, granting their motion and cross motion insofar as they were to strike the plaintiffs amended bill of particulars, and deemed the amended bill of particulars served.

Ordered that the order is affirmed insofar as appealed from, with costs.

Pursuant to CPLR 3042 (g), the plaintiff had the right to amend his bill of particulars once as of course prior to the filing of a note of issue. Thus, the court did not err in vacating its prior order granting the appellants’ respective motion and cross motion to strike the amended bill of particulars so served (see, Simino v St. Mary’s Hosp., 107 AD2d 800; Siegel, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1989 Pocket Part, CPLR C3043:2, at 302-303). We pass upon no other issue. Mangano, J. P., Brown, Lawrence and Eiber, JJ., concur.