Catarine v. Beth Israel Medical Center

• Decision Date: 03 January 2002
• Court: New York Supreme Court — Appellate Division
• Parties: CARMEN E. CATARINE, Respondent,<BR>v.<BR>BETH ISRAEL MEDICAL CENTER, Appellant.

290 A.D.2d 213

735 N.Y.S.2d 520

CARMEN E. CATARINE, Respondent,

v.BETH ISRAEL MEDICAL CENTER, Appellant.

Decided January 3, 2002.

Concur — Mazzarelli, J.P., Sullivan, Wallach, Rubin and Friedman, JJ.

This action, commenced in April 1992, alleges malpractice in failing to timely diagnose a cancerous condition causing plaintiff to undergo a modified radical mastectomy. Issue was joined on June 15, 1992 by service of a verified answer by defendant's counsel, Bower & Gardner. The matter languished for a six-year period, during which Bower & Gardner was dissolved in 1994. Service of a notice of appearance was made in response to plaintiff's request, in May 1998, that the hospital retain new counsel. Service of plaintiff's bill of particulars followed on June 10, 1998. Significantly, the document is dated June 25, 1992.

While Supreme Court's preliminary conference order directed that, within 30 days, plaintiff limit a request for persons having knowledge pertaining to her complaint so as to identify no more than five witnesses, it was not until October 1999 that plaintiff provided any witness information. At a compliance conference held December 17, 1999, the court directed that defendant produce, within 45 days, an internist and radiologist who had treated plaintiff and disclose its insurance coverage. Allegedly due to the passage of time, the hospital had difficulty identifying the physicians and did not provide counsel with their names until November 22, 2000, which information was forwarded to opposing counsel by letter dated November 29. In the interim, by motion dated August 17, 2000, plaintiff sought to strike the answer pursuant to CPLR 3126, which culminated in the first order appealed from, entered December 12, 2000, conditionally precluding defendant unless the depositions were completed by January 12, 2001. It is conceded that these examinations were not conducted and that disclosure of defendant's insurance coverage was untimely by several days.

On January 19, defendant brought an order to show cause to vacate its default and to renew and reargue, resulting in the second order appealed from, entered on or about May 4, 2001. Supreme Court's denial was predicated on defendant's failure to establish grounds to renew or reargue, but expressed the opinion that defendant had demonstrated no basis for vacatur. In conclusion, the order stated, "Defendant's repeated failure to comply with court-ordered discovery was willful and the answer was appropriately stricken."

Although the prior order was conditional, defendant's order to show cause clearly treated it as final, seeking a directive "reinstating the defendant's answer." In any event, the accompanying affidavit recites that defense counsel's wife underwent an emergency cesarean section on December 8, requiring a four-day hospital stay, and that his presence was required at home...