Batista v. St. Luke's Hospital, Woman's Hospital Division

• Citation: 361 N.Y.S.2d 190,46 A.D.2d 806
• Parties: Silvia BATISTA, etc., Appellant, v. ST. LUKE'S HOSPITAL, WOMAN'S HOSPITAL DIVISION, Respondent.
• Decision Date: 25 November 1974
• Court: New York Supreme Court Appellate Division

Page 190

361 N.Y.S.2d 190

46 A.D.2d 806

Silvia BATISTA, etc., Appellant, v. ST. LUKE'S HOSPITAL, WOMAN'S HOSPITAL DIVISION, Respondent.

Supreme Court, Appellate Division, Second Department.

Nov. 25, 1974.

Irving Bushlow, Brooklyn (Dochter, Sterngass & Weicholz, New York City (Thomas R. Newman and Benjamin H. Siff, New York City), of counsel), for appellant.

Barry, McTiernan & Moore, New York City (John J. Moore, New York City, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, LATHAM, BENJAMIN and MUNDER, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, plaintiff appeals (1) from an order of the Supreme Court, Kings County, dated April 25, 1974, which (a) denied her motion to vacate a conditional order of preclusion dated August 21, 1972 and to direct defendant to accept a bill of particulars and (b) upon defendant's request, dismissed the complaint; and (2) as limited by her brief, from so much of a further order of the same court, dated June 20, 1974, as, upon reargument, adhered to the original determination.

Appeal from order of April 25, 1974 dismissed as academic, without costs. That order was superseded by the order which granted reargument.

Order of June 20, 1974, reversed insofar as appealed from without costs, plaintiff's prior motion granted in all respects, and complaint reinstated, upon condition that, within 20 days after entry of the order to be made hereon, plaintiff's attorney personally pay $250 costs to defendant.

On April 12, 1970, plaintiff, then 24 years of age and due to give birth, entered defendant's hospital for delivery. A cesarean section was performed, with plaintiff under general anesthesia. After the operation she suffered convulsions and seizures, which necessitated the performance of a tracheostomy to enable her to breathe. She was hospitalized for 68 days more than she should have been, one month of which was spent in coma, and emerged with permanent brain damage which has rendered her totally disabled. On April 3, 1972, she commenced this action, alleging that her injuries were the result of the negligent administration of general anesthesia during the operation performed by defendant's agents and employees.

On May 23, 1972 defendant demanded a bill of particulars and, upon plaintiff's noncompliance, moved for an order of preclusion. On August 21, 1972 Special Term granted such an order, to take effect in the event plaintiff failed to serve the bill within 20 days. On September 13, 1972, defendant granted a 10-day extension for service of the bill. However, the record indicates that it was not until December 7, 1973, some 15 months after entry of the conditional order of preclusion, that plaintiff finally served the bill, at which time it was rejected by defendant as untimely.

Plaintiff thereupon moved to vacate the conditional order of preclusion and to direct defendant to accept the late bill. The excuse proffered to Special Term by her attorney was: 'The due date, for some reason I am at loss to explain was not carried forward in the office diary.' Special Term denied plaintiff's motion and dismissed the complaint,...