Pratt v. Ocean Medical Care, P. C.

236 A.D.2d 381, 654 N.Y.S.2d 316, 1997 N.Y. App. Div. LEXIS 1084

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1997
• Status: Published

Opinion

—In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Clifford Murray and his attorneys Beldock, Levine & Hoffman, LLP, appeal from an order of the Supreme Court, Nassau County (Roberto, J.), dated May 16, 1996 which (1) denied the motion of Clifford Murray for summary judgment dismissing the first and fifth causes of action on the ground that they were barred by the Statute of Limitations and (2) granted the plaintiffs’ cross motion to impose sanctions and imposed a sanction in the amount of $3,500 on the firm of Beldock, Levine & Hoffman, LLP.

Ordered that the order is modified, as a matter of discretion, by deleting the provision thereof which granted the plaintiffs’ cross motion to impose sanctions and substituting therefor a provision denying the plaintiffs’ cross motion; as so modified, the order is affirmed, with costs to the plaintiffs.

The present record, although more detailed than the record before this Court in Pratt v Ocean Med. Care (223 AD2d 583), is still inadequate to permit resolution, as a matter of law, of various factual questions at issue.

We agree with the Supreme Court that the appellant’s motion was, to some extent, repetitive of prior motions he made (see, Pratt v Ocean Med. Care, supra), and conclude that the Supreme Court properly denied the instant motion. However, the appellant’s counsel was not guilty of frivolous conduct, and a monetary sanction is not warranted, in light of the procedural posture in which the appellant’s current motion for summary judgment was made, which differs significantly from that in which his prior motions were made. Rosenblatt, J. P., Joy, Florio and McGinity, JJ., concur.