Moschetti v. Arnot-Ogden Memorial Hospital

69 A.D.2d 963, 416 N.Y.S.2d 338, 1979 N.Y. App. Div. LEXIS 11726

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1979
• Status: Published

Opinion

Appeal from orders of the Supreme Court at Special Term, entered February 28, 1978 and March 1, 1978 in Chemung County, which granted defendants’ motions for orders of preclusion pursuant to CPLR 3042. The action arose out of alleged medical malpractice inflicted upon plaintiff’s decedent by the defendants Arnot-Ogden Memorial Hospital and Dr. J. Alan Reid. The summonses and complaints were served on September 8, 1977 and an answer by the defendant doctor, along with demands for a bill of particulars by both defendants, were interposed in the latter part of September, 1977. In late January, 1978, motions to preclude were made by both defendants pursuant to CPLR 3042 (subd [c]). After plaintiff’s attorney neither submitted papers nor appeared on February 21, 1978, the return date, Special Term granted the motions and absolute orders of preclusion were subsequently entered. It appears that plaintiff’s attorney served the verified bills of particulars shortly before the preclusion orders were received by him and that the bills of particulars were refused. Under the circumstances of this case, we feel that it was an abuse of discretion by Special Term to grant absolute orders of preclusion without first granting the orders on a conditional basis (see Barone v Gangi, 34 AD2d 889). Accordingly, the orders must be modified. Orders modified, on the law and the facts, so as to grant the motions to preclude unless the plaintiff shall serve the bills of particulars within 10 days after the service upon him of the order of this court, and, as so modified, affirmed, with costs to the defendants. Sweeney, J. P., Kane, Staley, Jr., Main and Mikoll, JJ., concur.