Scocozza v. Tolia

262 A.D.2d 548, 691 N.Y.S.2d 799, 1999 N.Y. App. Div. LEXIS 6984

Opinion

—In a medical malpractice action to recover damages for conscious pain and suffering and wrongful death, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated July 23, 1998, as denied that branch of her motion which was for partial summary judgment dismissing the second cause of action to recover damages for conscious pain and suffering.

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

The Supreme Court improvidently exercised its discretion in permitting the defendant to submit a motion for partial summary judgment more than one year after the note of issue was filed, and on the eve of trial, in view of the fact that the defendant did not demonstrate any good cause for the inordinate delay (see, CPLR 3212 [a]; Rich v Ciano, 254 AD2d 268; Anzalone v Varis, 254 AD2d 381; Krug v Jones, 252 AD2d 572; Phoenix Garden Rest. v Chu, 245 AD2d 164). In any event, we agree with the Supreme Court that there remain triable issues of fact with respect to whether the decedent experienced conscious pain and suffering prior to his death (see generally, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Singer v Friedman, 220 AD2d 574).

The defendant’s remaining contentions are without merit. Santucci, J. P., Joy, Feuerstein and Schmidt, JJ., concur.