Whitaker v. Central Suffolk Hospital

87 A.D.2d 629, 450 N.Y.S.2d 420, 1982 N.Y. App. Div. LEXIS 15947

Opinion

In a medical malpractice action, defendant appeals from an order of the Supreme Court, Suffolk County (Jaspan, J.), dated July 23,1981, which denied its motion for summary judgment dismissing the complaint for failure to comply with an order of preclusion, upon condition, inter alia, that plaintiffs’ counsel personally pay $100 in costs. Order reversed, on the law, without costs or disbursements, and defendant’s motion for summary judgment dismissing the complaint is granted. Plaintiffs served three bills of particulars, each one only after entry of a conditional order of preclusion, and each one failing to include information known to or ascertainable by plaintiffs’ attorney. We find plaintiffs’ counsel’s course of conduct dilatory and inexcusable. Additionally, we note that plaintiffs failed to establish the legal merits of their claims by an affidavit containing a showing of evidentiary facts from a physician competent to attest to the meritorious nature of their causes of action (see Harris v Brooklyn Hosp. at Brooklyn Cumberland Med. Center, 81 AD2d 658). Accordingly, defendant’s motion should have been granted (see Barasch v Micucci, 49 NY2d 594). Mollen, P. J., Gibbons, Weinstein and Rubin, JJ., concur.