Duque by Dominguez v. Ortiz
| Decision Date | 02 October 1989 |
| Citation | 154 A.D.2d 333,545 N.Y.S.2d 810 |
| Parties | Diane DUQUE, an Infant, by her Parent and Natural Guardian, Jorge D. DOMINGUEZ, Respondent, v. Carlos A. ORTIZ, M.D., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Schiavetti, Begos & Nicholson, New York City (Kenneth Mauro, of counsel; Kathleen Opperman, on the brief), for appellant Carlos A. Ortiz, M.D.
Smith, Mazure, Director & Wilkins, New York City (Mark Yagerman and Steve S. Efron, of counsel), for appellant Booth Memorial Medical Center, Inc.
James S. Rowen & Associates, New York City (Paul W. Tracy, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, BROWN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In a personal injury action predicated upon medical malpractice, the defendants separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Queens County (Santucci, J.), dated February 24, 1988, as upon reargument, "resettled" a prior order of the same court, dated October 26, 1987, made upon the plaintiff's default, by granting the defendants' respective motions to dismiss the complaint due to the plaintiff's failure to comply with a March 23, 1987, discovery order only if the plaintiff failed to comply with that order within 30 days from the date of service upon her of a copy of the order dated February 24, 1988, with notice of entry.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the plaintiff's motion to reargue is denied, and the October 26, 1987, order is reinstated, without prejudice to a motion by the plaintiff, if she be so advised, to vacate her default with respect to the October 26, 1987, order upon appropriate motion papers.
On March 23, 1987, the Supreme Court, Queens County (Santucci, J.), issued an order directing the plaintiff to comply with certain discovery requests made by the defendants. Upon the plaintiff's failure to fully comply with the March 23, 1987, order, the defendants separately moved, pursuant to CPLR 3126, inter alia, to dismiss the complaint. By order dated October 26, 1987, the Supreme Court, Queens County (Santucci, J.) granted the defendants' motions unless within 10 days of service upon her of a copy of that order, with notice of entry, the plaintiff complied with the March 23, 1987, order. The October 26, 1987, order was entered upon the plaintiff's default.
The plaintiff did not comply with the October 26, 1987, order. Instead, on or about December 10, 1987, she moved for leave to reargue the defendants' motions, and upon reargument, for vacatur of the October 26, 1987, order. The defendants opposed the requested relief. By order dated February 24, 1988, the Supreme Court, Queens County (Santucci, J.), inter alia, granted the plaintiff's request for leave to reargue, and upon reargument, "resettled" the October 26, 1987, order by granting the defendants' respective motions unless the...
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