Bailey v. North Shore University Hosp.

Decision Date03 January 1983
Citation91 A.D.2d 967,457 N.Y.S.2d 336
PartiesEdward BAILEY, as Administrator, etc., Respondent, v. NORTH SHORE UNIVERSITY HOSPITAL, Defendant; William Sherbany, Appellant.
CourtNew York Supreme Court — Appellate Division

Heidell, Pittoni & Moran, P.C., New York City (Mario Pittoni and Beth A. Barrett, New York City, of counsel), for appellant.

Gregory Peck, New York City, for respondent.

Before TITONE, J.P., and THOMPSON, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, defendant Sherbany appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated September 15, 1981, as, upon granting his motion, inter alia, for summary judgment, did so unless plaintiff served upon him within a specified time, a responsive bill of particulars and an authorization for North Shore University Hospital medical records.

Order reversed insofar as appealed from, on the law, without costs or disbursements, and appellant's motion granted unconditionally.

In his affidavit in opposition to appellant's motion, the plaintiff failed to (1) establish a reasonable excuse for his failure to comply with two previous orders of preclusion, and (2) make a prima facie showing of merit by an affidavit of a physician competent to attest to the meritorious nature of his claim. Accordingly, it was an abuse of the court's discretion to have afforded plaintiff a further opportunity to serve upon appellant a responsive bill of particulars and an authorization for North Shore University Hospital medical records (see Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275; Harris v. Brooklyn Hosp. of Brooklyn Cumberland Med. Center, 81 A.D.2d 658, 438 N.Y.S.2d 370; Ferrigno v. St. Charles Hosp., 86 A.D.2d 594, 446 N.Y.S.2d 130).

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    • United States
    • New York Supreme Court — Appellate Division
    • January 3, 1983
    ... ... Brookdale Hosp. Med. Center, 87 A.D.2d 815, 448 N.Y.S.2d 771; Keller v ... ...
  • Wheeler v. State
    • United States
    • New York Supreme Court — Appellate Division
    • August 27, 1984
    ...46 A.D.2d 806, 361 N.Y.S.2d 190; cf. Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718; Bailey v. North Shore Univ. Hosp., 91 A.D.2d 967, 457 N.Y.S.2d 336, affd. 59 N.Y.2d 748, 463 N.Y.S.2d 442, 450 N.E.2d 248; Hargett v. Health & Hosps. Corp. of City of N.Y., 88 A.D.2d......
  • White v. Leonard
    • United States
    • New York Supreme Court — Appellate Division
    • May 16, 1988
    ...their case by an affidavit from a physician competent to attest to the meritorious nature of their claim (see, Bailey v. North Shore Univ. Hosp., 91 A.D.2d 967, 457 N.Y.S.2d 336, affd. 59 N.Y.2d 748, 463 N.Y.S.2d 442, 450 N.E.2d 248; Amodeo v. Radler, 89 A.D.2d 594, 452 N.Y.S.2d 471, affd. ......
  • Gass v. Gass
    • United States
    • New York Supreme Court — Appellate Division
    • May 21, 1984
    ...thereby permitting her to escape the consequences of her noncompliance with four prior court orders (Bailey v. North Shore Univ. Hosp., 91 A.D.2d 967, 457 N.Y.S.2d 336, affd. 59 N.Y.2d 748, 463 N.Y.S.2d 442, 450 N.E.2d 248; Ferrigno v. St. Charles Hosp., 86 A.D.2d 594, 446 N.Y.S.2d 130; Har......
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