St. Pierre v. Ostreich

123 A.D.2d 857, 507 N.Y.S.2d 642, 1986 N.Y. App. Div. LEXIS 60974

Opinions

In a medical malpractice action, the defendants Ostreich, Wain, Talebian and Wortman appeal (1) as limited by their brief, from so much of an order of the Supreme Court, Kings County (Pizzuto, J.), dated December 19, 1984, as discontinued the infant plaintiff’s action without prejudice. The appeal brings up for review so much of an order of the same court, dated September 5, 1986, as, upon reargument, adhered to its original determination that the discontinuance of the infant plaintiff’s action should be without prejudice.

Ordered that the appeal from the order dated December 19, 1984 is dismissed, without costs or disbursements. That order was superseded by the order dated September 5, 1986, made upon reargument, and it is further,

Ordered that the order dated September 5, 1986 is affirmed insofar as reviewed, without costs or disbursements.

Despite the vigor with which our dissenting colleague challenges Special Term’s determination permitting a two-year-old infant’s medical malpractice case to be discontinued without prejudice, we view the order in issue to be an exercise of discretion that should be permitted to stand. Special Term quite obviously exercised its discretion not to deprive the child of the right to recovery simply because the parents were disinclined or unable to proceed with a suit on the child’s behalf. That decision on the part of the court was not an abuse of discretion. Lazer, J. P., Bracken and Eiber, JJ., concur.