Murray v. Brookhaven Memorial Hospital Medical Center

73 A.D.3d 878, 902 N.Y.S.2d 576

Opinion

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated January 6, 2009, as denied the plaintiffs motion, in effect, to vacate so much of a “preliminary conference stipulation and order” of the same court dated July 31, 2008, as, in effect, over the plaintiffs objection, granted the defendants’ oral application to strike the word “reckless” from the plaintiffs verified bill of particulars.

Ordered that the order dated January 6, 2009, is reversed insofar as appealed from, on the law, with one bill of costs, and the plaintiffs motion, in effect, to vacate so much of the “preliminary conference stipulation and order” dated July 31, 2008, as, in effect, over the plaintiffs objection, granted the defendants’ oral application to strike the word “reckless” from the plaintiffs verified bill of particulars, is granted.

Under the circumstances of this case, the Supreme Court improperly, in effect, granted the defendants’ oral application to strike the term “reckless” from the plaintiffs verified bill of particulars. Inasmuch as the determination of this particular application necessarily involved a consideration of evidentiary sufficiency, a formal motion on notice to the plaintiff should have been made (see CPLR 2214; see also Williams v Naylor, 64 AD3d 588, 589 [2009]; Padro v Boulevard Hosp., 92 AD2d 888 [1983]; see generally CPLR 1602, 3212). Accordingly, the Supreme Court erred in denying the plaintiffs motion, in effect, to vacate so much of the “preliminary conference stipulation and order” dated July 31, 2008, as, in effect, granted the defendants’ oral application.

In light of our determination, it is unnecessary to reach the plaintiffs remaining contentions. Dillon, J.P., Santucci, Florio and Hall, JJ., concur.