Barbera v. DeRostaing

Decision Date31 May 1988
Citation528 N.Y.S.2d 1020,140 A.D.2d 660
PartiesTina Marie BARBERA, etc., et al., Respondents, v. Caesar DeROSTAING, Appellant, et al., Defendants.
CourtNew York Supreme Court — Appellate Division

Rossano, Mose, Connick & Hirschorn, P.C., Garden City (Francis G. Passaro, of counsel), for appellant.

In a medical malpractice action to recover damages for personal injuries, etc., the defendant DeRostaing appeals from so much of an order of the Supreme Court, Nassau County (Burstein, J.), dated July 31, 1987, as failed to grant his motion for summary judgment dismissing the complaint unconditionally. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted unconditionally, and the complaint is dismissed. In view of the plaintiffs' failure to provide any reasonable excuse for their extensive delay in serving their bill of particulars, their failure to comply with the court's conditional order of preclusion, and their failure to submit an affidavit of merit, the appellant's motion for summary judgment dismissing the complaint should have been granted unconditionally and the complaint dismissed ( see, LaBuda v. Brookhaven Mem. Hosp. Med. Center, 98 A.D.2d 711, 469 N.Y.S.2d 112, affd. 62 N.Y.2d 1014, 479 N.Y.S.2d 493, 468 N.E.2d 675; 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).


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