Dwyer by Dwyer v. Mazzola

• Decision Date: 11 March 1991
• Citation: 171 A.D.2d 726,567 N.Y.S.2d 281
• Parties: Matthew DWYER, an Infant, by His Parent and Natural Guardian, John DWYER, et al., Respondents, v. Louis Francis MAZZOLA, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 281

567 N.Y.S.2d 281

171 A.D.2d 726

Matthew DWYER, an Infant, by His Parent and Natural Guardian, John DWYER, et al., Respondents, v. Louis Francis MAZZOLA, Appellant, et al., Defendant.

Supreme Court, Appellate Division Second Department.

March 11, 1991.

Schiavetti, De Vito, Begos & Nicholson, New York City (Kenneth Mauro, of counsel), for appellant.

Before THOMPSON, J.P., and KUNZEMAN, EIBER and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for personal injuries, etc., the defendant Louis Francis Mazzola appeals from so much of an order of the Supreme Court, Nassau County (Brucia, J.), dated April 5, 1990, as denied those branches of his motion which were for leave to conduct supplemental depositions of the plaintiffs John Dwyer and Anne Dwyer and a supplemental physical examination of the infant plaintiff Matthew Dwyer.

ORDERED that the order is reversed insofar as appealed from, with costs, those branches of the appellant's motion which were for leave to conduct supplemental depositions of the plaintiffs John Dwyer and Anne Dwyer and for a supplemental physical examination of the plaintiff Matthew Dwyer are granted, and the depositions and physical examination shall be held at a time and place to be specified in a written notice of at least 10 days, to be given to the plaintiffs by the appellant, or at such time and place as the parties may agree.

The original depositions of the plaintiffs John Dwyer and Anne Dwyer were held in November 1980 and the original physical examination of the plaintiff Matthew Dwyer was conducted in September 1980. A note of issue and statement of readiness was filed in 1984, but the action was stricken from the calendar in January 1988 when the plaintiffs' law firm withdrew as counsel. Upon motion of the plaintiffs' new counsel, the action was restored to the trial calendar in February 1989. In February 1990 the appellant sought to update his information as to the nature and permanency of the infant plaintiff's injuries by moving, inter alia, for leave to conduct supplemental depositions of the plaintiffs John Dwyer and Anne Dwyer and a supplemental physical examination of the infant plaintiff Matthew Dwyer. Those branches of the motion which were for depositions and a physical examination were denied.

We disagree that the appellant is "guilty of gross laches" in failing to seek the requested disclosure prior to February 1990. Generally, neglect to assert promptly a claim for relief, if such neglect causes prejudice to the adverse party, operates as a bar to the remedy (see, 75 NYJur2d, Limitations and Laches, § 330) and as a basis for invoking the doctrine of laches (see, Matter of Taylor v. Vassar Coll., 138 A.D.2d 70, 530 N.Y.S.2d 289). The four basic elements of laches are, (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant (75 NYJur2d, Limitations and Laches, § 333). All four...