Frankel v. French and Polyclinic Medical School and Health Center
| Decision Date | 25 June 1979 |
| Citation | 417 N.Y.S.2d 776,70 A.D.2d 947 |
| Parties | Abraham FRANKEL et al., Respondents, v. FRENCH AND POLYCLINIC MEDICAL SCHOOL AND HEALTH CENTER, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Gordon & Silber, New York City (Norman Bard and Lawrence Kanterman, Brooklyn, of counsel), for appellant.
Sol Lefkowitz, Glen Cove, for respondents.
Before MOLLEN, P. J., and DAMIANI, O'CONNOR and RABIN, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action, the defendant French & Polyclinic Medical School & Health Center appeals from (1) an order of the Supreme Court, Nassau County dated January 3, 1979, which, Inter alia, granted plaintiffs' motion to strike its answer for failure to appear for an examination before trial by one of its employees with knowledge of the facts and (2) a further order of the same court, dated January 26, 1979, which denied its motion for renewal.
Order dated January 26, 1979 reversed, motion for renewal granted and, upon renewal, order dated January 3, 1979 vacated and motion to strike the defendant hospital's answer denied.
Appeal from the order dated January 3, 1979, dismissed as academic.
The defendant hospital is awarded one bill of $50 costs and disbursements.
Plaintiff Abraham Frankel is a former patient of the defendant French and Polyclinic Medical School and Health Center. The hospital was adjudicated a bankrupt on May 16, 1977 and on that date the United States District Court for the Southern District of New York issued an order staying "the commencement or continuation of any action * * * against the bankrupt or its property". Thereafter plaintiffs commenced this action against the hospital by service of a summons and complaint on or about September 26, 1977, to recover damages for personal injuries, etc., allegedly sustained due to medical malpractice.
On these appeals the hospital first contends that because this action was commenced in violation of the stay issued by the bankruptcy court, the courts of this State were without subject matter jurisdiction. This contention is without merit for two reasons, namely that (1) a stay of the commencement of actions against a bankrupt is, in effect, an injunction addressed to a suitor and not to any court and it does not deprive such court of subject matter jurisdiction (Steelman v. All Continent Corp., 301 U.S. 278, 290-291, 57 S.Ct. 705, 81 L.Ed. 1085; cf. Bergleitner v. Weiss, 52 A.D.2d 670, 381 N.Y.S.2d 1006) and (2) on January 22, 1979 the stay in question was vacated by the District Court upon motion of the...
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