Baxt v. Cohen
| Decision Date | 21 July 1983 |
| Citation | 96 A.D.2d 661,466 N.Y.S.2d 737 |
| Parties | Bessie BAXT, Respondent, v. Seymour COHEN et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (R. Christopher Owen, Albany, of counsel), for appellants Seymour Cohen and Seymour Bessin.
Meiselman, Farber, Stella & Eberz, Poughkeepsie (Dennis G. Ellis, Poughkeepsie of counsel), for appellant Community General Hosp. of Sullivan County.
Fuchsberg & Fuchsberg, New York City (Leonard Schwartz, New York City, of counsel), for respondent.
Before MAIN, J.P., and CASEY, MIKOLL, YESAWICH and WEISS, JJ., concur.
Appeal from an order of the Supreme Court at Special Term, entered January 27, 1983 in Sullivan County, which granted plaintiff's motion to vacate defendants' 90-day notices served pursuant to CPLR 3216 to the extent that plaintiff be permitted 15 additional days to file a note of issue and statement of readiness, permitted plaintiff further pretrial disclosure after said filing, directed defendants to appear and submit for examinations before trial on specified dates, and denied defendants any further pretrial disclosure unless they first obtained a court order upon a showing of special circumstances.
Issue was joined in this medical malpractice action by November, 1980. An August 28, 1981 decision of Special Term (Cobb, J.) directed that depositions of all parties be conducted beginning October 21, 1981. Those examinations were never held. Approximately one year later, defendants served 90-day notices upon plaintiff pursuant to CPLR 3216. Plaintiff in turn moved to vacate the notices; in the alternative, she asked that the time to file a notice of issue and statement of readiness be extended to a date at least 90 days after the completion of "all discovery heretofore or herein ordered by this Honorable Court". Special Term (Hughes, J.) granted the motion to the extent already indicated. The decision to prohibit defendants from carrying on any pretrial discovery unless special circumstances were demonstrated and a court order obtained was predicated upon Special Term's belief that, by serving the 90-day demand, defendants had announced that their pretrial disclosure had been completed (this despite the fact defendants have enjoyed no disclosure of any substance) and that defendants could have secured further disclosure, if they had truly sought it, by resorting to CPLR 3124 and 3126. We...
To continue reading
Request your trial
-
Creegan v. Mazella
...issue was attributable to the defendant's conduct (cf. Aquilino v. Adirondack Tr. Lines, 97 A.D.2d 929, 470 N.Y.S.2d 723; Baxt v. Cohen, 96 A.D.2d 661, 466 N.Y.S.2d 737). ...
-
Allone v. University Hosp. of New York University Medical Center
...contention, the 90-day demands were not abandoned or waived by the defendants' requests for further discovery (see, Baxt v. Cohen, 96 A.D.2d 661, 466 N.Y.S.2d 737; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3216:17, at 646). Nor were the defendants required ......
-
Boisvert v. Town of Grafton
...for filing (see, CPLR 3216[b] ), nor did he indicate that additional time to file the note of issue was necessary (see, Baxt v. Cohen, 96 A.D.2d 661, 466 N.Y.S.2d 737; 22 NYCRR former 861.10; 22 NYCRR 202.21[d] ). It is evident that plaintiff was aware that he had failed to obtain any credi......
- Rifenbury v. Gerrity