LaBuda v. Brookhaven Memorial Hosp. Medical Center
| Decision Date | 05 December 1983 |
| Citation | 469 N.Y.S.2d 112,98 A.D.2d 711 |
| Parties | Robert LaBUDA, Respondent, v. BROOKHAVEN MEMORIAL HOSPITAL MEDICAL CENTER, Defendant-Respondent; Abraham Cohen, M.D., et al., Appellants, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Richard C. Mooney & Associates, Hempstead (Robert N. Schutz, Locust Valley, of counsel), for appellants.
Henry M. Grubel, P.C., Freeport (Amy G. Lesserson, of counsel), for respondent.
Before LAZER, J.P., and MANGANO, BRACKEN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, defendants Cohen, Kane and Finkelstein, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County, dated April 15, 1983, as denied their motion for summary judgment dismissing the complaint as to them based on plaintiff's failure to supply a bill of particulars as required by a conditional order of preclusion, provided plaintiff paid the appellants the sum of $500.
Order reversed insofar as appealed from, on the law, without costs or disbursements, and appellants' motion for summary judgment granted.
In recently enacting CPLR 2005 (L.1983, ch. 318), the Legislature effectively overruled the rigid approach to both pleading defaults and defaults in connection with other intra-action procedures caused by law office failure set forth in Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275, Eaton v. Equitable Life Assur. Soc. of U.S., 56 N.Y.2d 900, 453 N.Y.S.2d 404, 438 N.E.2d 1119 and their progeny (S.G.S.G. Const. Corp. v. Marr, 96 A.D.2d 937, 462 N.Y.S.2d 709; Brann v. City of New York, 96 A.D.2d 923, 466 N.Y.S.2d 365). The new legislation rejected the proposition that law office failure is an insufficient excuse as a matter of law and restored to the courts the discretion possessed prior to Barasch (supra ). Accordingly, law office failure may now again be weighed along with several other relevant factors in determining motions to open defaults of this nature, i.e., the particular excuse for the delay, the merits of the action, if any, as demonstrated by an affidavit containing evidentiary facts and attested to by an individual with personal knowledge of those facts, the length of the delay and seriousness of the injury (Odess v. Medical Center, Teamster Local 1034, 67 A.D.2d 941, 413 N.Y.S.2d 205; Batista v. St. Luke's Hosp., 46 A.D.2d 806, 361 N.Y.S.2d 190; Moran v. Ryner, 39 A.D.2d 718, 332 N.Y.S.2d 138; Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186). However, it was not the intent of the new legislation to routinely excuse defaults.
In the case at bar, the plaintiff's attorney failed to respond to a demand for a bill of particulars which was served by appella...
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