Klein v. Mount Sinai Hosp.

• Decision Date: 03 June 1986
• Citation: Klein v. Mount Sinai Hosp., 502 N.Y.S.2d 1018, 121 A.D.2d 164 (N.Y. App. Div. 1986)
• Parties: Marsha KLEIN, Plaintiff-Appellant, v. MOUNT SINAI HOSPITAL, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 1018

502 N.Y.S.2d 1018

121 A.D.2d 164

Marsha KLEIN, Plaintiff-Appellant, v. MOUNT SINAI HOSPITAL, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

June 3, 1986.

D.M. Schuller, New York City, for plaintiff-appellant.

S.J. Ahmuty, Jr., New York City, for defendant-respondent.

Before KUPFERMAN, J.P., and ASCH, FEIN, MILONAS and WALLACH, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Elliott J. Wilk, J.), entered May 20, 1985, granting the motion by defendant Mount Sinai Hospital for reargument and renewal and upon such reargument and renewal denying plaintiff's motion to strike defendant's answer and vacating the order entered on September 25, 1984 directing that defendant's answer be stricken and the matter set down for an assessment of damages, is unanimously reversed, on the law and facts and in the exercise of discretion, the motion by defendant denied and the order of September 25, 1984 reinstated, with costs.

In this malpractice action, defendant failed to comply with a conditional order of the court dated May 23, 1984 directing it to furnish items of discovery within 20 days of the service of a copy of the order or have its answer stricken. Plaintiff, although maintaining that the order was "self-executing", moved pursuant to CPLR 3126 to strike the answer for failure to comply with this order. Special Term, in an order dated September 25, 1984, granted this motion and set the matter down for an assessment of damages.

Thereafter, Special Term, in the order appealed from, granted defendant's motion for reargument and renewal and upon reargument and renewal...