Little v. Long Island Jewish Medical Center

• Decision Date: 09 September 1996
• Citation: 647 N.Y.S.2d 258,231 A.D.2d 496
• Parties: Aleveta Faye LITTLE, etc., et al., Appellants, v. LONG ISLAND JEWISH MEDICAL CENTER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 258

647 N.Y.S.2d 258

231 A.D.2d 496

Aleveta Faye LITTLE, etc., et al., Appellants, v. LONG ISLAND JEWISH MEDICAL CENTER, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Sept. 9, 1996.

Bonita E. Zelman, New York City (Alexander J. Wulwick, of counsel), for appellants.

Shaub, Ahmuty, Citrin & Spratt, L.L.P., Lake Success (Steven J. Ahmuty, Jr., of counsel), for respondent Long Island Jewish Medical Center.

O'Leary & O'Leary, Jamaica (Joseph D. Furlong and Sean O'Leary, of counsel), for respondent Boro Medical, P.C.

Bartlett, McDonough, Bastone & Monaghan, L.L.P., White Plains (Edward J. Guardaro, Jr., of counsel), for respondent Steve Rucker.

Santangelo, Benvenuto & Slattery, Manhasset (James W. Tuffin, of counsel), for respondent Vinayendra Jain, M.D.

Before BRACKEN, J.P., and SANTUCCI, McGINITY and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries and wrongful death, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Queens County (Satterfield, J.), dated June 16, 1995, which vacated stays of 90-day notices served by the defendants Boro Medical P.C., Steve Rucker, and Vinayendra Jain pursuant to CPLR 3216, denied the plaintiffs' motion to vacate the 90-day notices, and granted the cross motion of the defendant Vinayendra Jain, in which the defendants Boro Medical, P.C., and Steve Rucker joined, to dismiss the action pursuant to CPLR 3126(3) for failure to comply with a preliminary conference order, and (2) a judgment of the same court, entered June 26, 1995, which dismissed the action.

ORDERED that the appeal from the order dated June 16, 1995, is dismissed; and it is further,

ORDERED that the judgment is reversed, as a matter of discretion, with one bill of costs, the order is vacated, the motion is granted, the cross motion is denied, and the matter is remitted to the Supreme Court, Queens County, (1) to determine whether there is a good faith basis for demands for authorizations to obtain medical records from Northern Westchester Hospital, M. Levine, Dr. Waxelman, and Dr. Pollack, and to direct the plaintiffs to serve those medical authorizations which have a good-faith basis, (2) to determine whether any additional documents are required to obtain income information, and to direct the plaintiffs to serve any documents which are required, and (3) to set a new schedule for depositions; and it is further,

ORDERED that the plaintiffs are precluded from seeking any special damages not set forth in their bill of particulars dated May 18, 1993.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1].

In December 1994 the defendants Vinayendra Jain, Boro Medical, P.C., and Steve Rucker each served the plaintiffs with 90-day notices pursuant to CPLR 3216. In January 1995 the plaintiffs obtained a temporary stay of the 90-day notices, and moved to vacate them, on the ground that the defendants had not yet agreed on a date certain for depositions.

The defendant Dr. Jain cross-moved pursuant to CPLR 3126(3) to dismiss the action for the plaintiffs' failure to comply with the terms of a preliminary conference order which directed the plaintiffs to serve a supplemental bill of particulars with respect to special damages, failure to serve all of the authorizations for medical records enumerated in the preliminary conference order, and failure to provide adequate authorizations to obtain income and employment information with respect to the plaintiffs' decedent. Dr. Jain further alleged that owing to those failures, depositions could not be scheduled. The defendants Boro Medical, P.C., and Steve Rucker joined in the cross motion.

The plaintiffs, in opposition, claimed that the original bill of particulars dated May 18, 1993, claiming special damages of $3,713 for hospital costs, was adequate, and contained "all information within [the plaintiffs'] possession at the present time". The plaintiffs further claimed that they had provided authorizations to obtain medical records from all of the medical providers known to them, but had failed to provide authorizations for "Northern Westchester Hospital, M. Levine, Dr. Waxelman and Dr. Pollack" because they never heard of those names. The plaintiffs further stated that they had provided "appropriate authorizations and documentation" to obtain income information. The plaintiffs failed to submit an affidavit of merit from a qualified medical expert (see, Pantaliano v. Goodman, 214 A.D.2d 607, 625 N.Y.S.2d 82).

The court denied the motion, and granted the cross motion, on the ground that the plaintiffs "failed to conduct discovery and to advise the court of any specifics regarding the status of discovery".

During the pendency of the 90-day period in a notice pursuant to CPLR 3216, a court cannot entertain a motion to dismiss for "general delay in prosecuting an action" (Weber v. Kessler, 224 A.D.2d 520, 638 N.Y.S.2d 144), but can entertain a ...