Fritz v. Burman

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MARK C. DILLON
• Citation: Fritz v. Burman, 107 A.D.3d 934, 967 N.Y.S.2d 761, 2013 N.Y. Slip Op. 4772 (N.Y. App. Div. 2013)
• Decision Date: 26 June 2013
• Parties: James FRITZ, etc., et al., respondents, v. Dmitriy BURMAN, et al., appellants.

107 A.D.3d 934

967 N.Y.S.2d 761

2013 N.Y. Slip Op. 04772

James FRITZ, etc., et al., respondents,

v.Dmitriy BURMAN, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

June 26, 2013.

Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., and Michael K. Chin of counsel), for appellant Dmitriy Burman.

Fumuso, Kelly, Deverna, Snyder, Swart & Farrel, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for appellant Chinwe Offor.

Lewis, Johs, Avallone Aviles, LLP, Melville, N.Y. (Seth M. Weinberg of counsel), for appellant Mercy Medical Center.

Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y. (Jennifer J. Bennice and Timothy M. Smith of counsel), for appellants Marc Behar and Marc Behar, M.D., P.C.

Gianfortune & Mionis, P.C., Mineola, N.Y. (Richard P. Stone of counsel), for respondents.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ.

In an action to recover damages for medical malpractice, etc., the defendant Dmitriy Burman, the defendant Chinwe Offor, the defendant Mercy Medical Center, and the defendants Marc Behar and Marc Behar, M.D., P.C., separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered August 17, 2011, as denied those branches of their respective motions which were pursuant to CPLR 3124 to compel the plaintiffs to comply with certain discovery demands, and for related relief.

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof denying those branches of the respective motions of the defendant Dmitriy Burman, the defendant Chinwe Offor, the defendant Mercy Medical Center, and the defendants Marc Behar and Marc Behar, M.D., P.C., which were to compel the plaintiffs to produce the school records of the brother of the plaintiff James Fritz, and substituting therefor a provision granting those branches of the motions to the extent of directing the plaintiffs to produce those records for in camera inspection by the Supreme Court and otherwise denying those branches of the motions, and (2) by deleting the provision thereof denying those branches of the respective motions of the defendant Dmitriy Burman, the defendant Chinwe Offor, the defendant Mercy Medical Center, and the defendants Marc Behar and Marc Behar, M.D., P.C., which were to compel the blood-testing and the appearance at a deposition of the plaintiff James Fritz, and substituting therefor provisions granting those branches of the motions; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, to set a schedule for completion of discovery, and to rule on any further outstanding demands for discovery.

The Supreme Court denied the defendants' respective motions, inter alia, to compel discovery on the ground that the parties failed to follow the court's practice requiring them to enter into a self-executing stipulation as to outstanding discovery that included preclusion provisions. While we recognize that the Supreme Court had the authority to enforce its own procedures and control its calendar, in light of the plaintiffs'...