Grassel v. Albany Medical Center Hosp.
| Decision Date | 04 January 1996 |
| Parties | Mariann GRASSEL, as Administrator of the Estate of George Grassel, Deceased, Respondent, v. ALBANY MEDICAL CENTER HOSPITAL et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Maynard, O'Connor, Smith, Catalinotto & D'Agostino (Arete Sprio, of counsel), Albany, for Albany Medical Center Hospital and another, appellants.
Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander (Mary Beth Hynes, of counsel), Albany, for Marilyn Cowger, appellant.
James A. Steinberg (John T. Melella, of counsel), Poughkeepsie, for Lynne Liptay and another, appellants.
Pegalis & Wachsman P.C. (Rhonda L. Meyer, of counsel), Great Neck, for respondent.
Before MERCURE, J.P., and CREW, WHITE, CASEY and YESAWICH, JJ.
Appeals (1) from that part of an order of the Supreme Court (Keegan, J.), entered October 6, 1994 in Albany County, which denied defendants' motions for summary judgment dismissing the complaint, and (2) from an order of said court, entered February 10, 1995 in Albany County, which, upon reconsideration, vacated so much of Supreme Court's prior order as precluded expert witness testimony on behalf of plaintiff at trial.
Plaintiff commenced this medical malpractice action against defendants in April 1990 seeking damages related to the care and treatment rendered to her son. In July 1993 plaintiff filed a note of issue and statement of readiness, and in January 1994 Supreme Court set a day certain for trial of September 12, 1994. On September 8, 1994, during a telephone conference between Supreme Court and counsel for the parties, an issue was raised regarding plaintiff's failure to serve a response to defendants' respective expert witness demands. The parties appeared for a conference the following day, at which time defendants moved to preclude plaintiff from offering expert witness testimony at trial due to her failure to comply with CPLR 3101(d)(1)(i) and for summary judgment dismissing the complaint. By order entered October 6, 1994, Supreme Court, inter alia, granted defendants' preclusion motion and denied defendants' motion for summary judgment dismissing the complaint. Plaintiff thereafter moved for reconsideration, and by order entered February 10, 1995, Supreme Court granted said motion and vacated that portion of its prior order precluding plaintiff and certain defendants from offering expert witness testimony at trial. These appeals by defendants followed.
Initially, we agree with defendants that Supreme Court erred in granting plaintiff's motion for renewal and/or reargument. It is well settled that a motion to renew must be based upon newly discovered evidence that was not available when the original motion was made and must include a justifiable excuse for not placing such new and material facts before the court in the first instance (see, Wagman v. Village of Catskill, 213 A.D.2d 775, 775-76, 623 N.Y.S.2d 20, 20-21; Spa Realty Assocs. v. Springs Assocs., 213 A.D.2d 781, 783, 623 N.Y.S.2d 22, 24; Matter of Albany Community Dev. Agency v. Abdelgader, 205 A.D.2d 905, 905-06, 613 N.Y.S.2d 473, 473-74). Although this standard is somewhat flexible (see, Ramsco Inc. v. Riozzi, 210 A.D.2d 592, 593, 619 N.Y.S.2d 809, 809-10), plaintiff nonetheless has failed to meet it here.
Even assuming that the particular circumstances surrounding plaintiff's delay in obtaining experts may be characterized as newly discovered evidence, plaintiff has failed to offer a justifiable excuse for not placing such facts before the court at the time the oral preclusion motion was made on September 9, 1994. Although plaintiff indeed was represented by two different attorneys from the same office at the September 8, 1994 and September 9, 1994 conferences, the attorney who appeared before Supreme Court on September 9, 1994 acknowledged that she was advised by her colleague that an issue had been raised the day before regarding the timeliness of plaintiff's expert witness responses and, as such, counsel should have been prepared...
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