Smith v. North Shore University Hospital

Appellate Division of the Supreme Court of New York

Smith v. North Shore University Hospital

198 A.D.2d 219, 604 N.Y.S.2d 797, 1993 N.Y. App. Div. LEXIS 10178

Appellate Division of the Supreme Court of the State of New York·Decided November 1, 1993·Published·Cited by 2 cases

Opinion

—In a medical malpractice action, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Leviss, J.), entered August 20, 1991, as granted the defendants’ motions to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court did not improvidently exercise its discretion in dismissing the complaint due to the infant plaintiff’s failure to comply with discovery (see, CPLR 3126). Specifically, the infant plaintiff failed to comply with two orders, dated July 10, 1989, and October 25, 1989, directing him to appear for an examination before trial and for a physical examination. We reject the contention of counsel that since the whereabouts of the infant plaintiff were unknown, his failure to comply with the orders precluded the dismissal of the action (see, Gonzalez v Paniccioli, 174 AD2d 709). Bracken, J. P., Balletta, Eiber, O’Brien and Pizzuto, JJ., concur.

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—In a medical malpractice action, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Leviss, J.), entered August 20, 1991, as granted the defendants’ motions to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court did not improvidently exercise its discretion in dismissing the complaint due to the infant plaintiff’s failure to comply with discovery (see, CPLR 3126). Specifically, the infant plaintiff failed to comply with two orders, dated July 10, 1989, and October 25, 1989, directing him to appear for an examination before trial and for a physical examination. We reject the contention of counsel that since the whereabouts of the infant plaintiff were unknown, his failure to comply with the orders precluded the dismissal of the action (see, Gonzalez v Paniccioli, 174 AD2d 709). Bracken, J. P., Balletta, Eiber, O’Brien and Pizzuto, JJ., concur.

Smith v. North Shore University Hospital, 198 A.D.2d 219, 604 N.Y.S.2d 797, 1993 N.Y. App. Div. LEXIS 10178 (N.Y. Ct. App. 1993).

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198 A.D.2d 219 (Smith v. North Shore University Hospital) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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