McGilvery v. New York City Transit Authority

• Decision Date: 28 March 1995
• Citation: 624 N.Y.S.2d 158,213 A.D.2d 322
• Parties: Adeline McGILVERY, as Administratrix of the Estate of Ethel DeLee, Deceased, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 158

624 N.Y.S.2d 158

213 A.D.2d 322

Adeline McGILVERY, as Administratrix of the Estate of Ethel DeLee, Deceased, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

March 28, 1995.

C. Berkman, for plaintiff-appellant.

E.P. Dunphy, for defendant-respondent.

Before SULLIVAN, J.P., and ELLERIN, KUPFERMAN and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered on or about April 7, 1994, which granted plaintiff's motion to reargue, but, upon reargument, adhered to the court's prior order, entered December 6, 1993, which granted defendant's motion to preclude plaintiff from introducing any evidence regarding her decedent's medical condition and injuries allegedly sustained on September 13, 1985 and to dismiss her complaint, unanimously reversed, on the law, to the extent appealed from, as limited by appellant's brief, the December 6, 1993 order is vacated, defendant's motion is denied and the complaint is reinstated, without costs.

This action was commenced on June 30, 1986, to recover for injuries allegedly sustained by the then 72 year old Ethel DeLee on September 13, 1985, when she fell in the subway station at 34th Street and 7th Avenue. Defendant interposed an answer, as well as a demand for any medical records on July 3, 1986. On January 31, 1988, plaintiff's decedent was deposed by defendant and, about a year later, on January 17, 1989, plaintiff's decedent served defendant with a bill of particulars and copies of her medical records from Harlem Hospital. Plaintiff's decedent also served defendant with a notice that Mrs. DeLee would be available for a physical examination on February 22, 1989, at 2:00 p.m. Defendant never responded to such notice and, on April 21, 1990, Mrs. DeLee, who was homebound during the last two years of her life, died.

Thereafter, on September 9, 1993, plaintiff served a note of issue and statement of readiness. On September 22, 1993, defendant moved to strike the case from the calendar, vacate the note of issue and statement of readiness, preclude plaintiff from introducing evidence regarding the decedent's medical condition, and direct plaintiff to provide written authorizations for the decedent's medical records at Harlem Hospital.

The basis for defendant's motion was its claim that decedent failed to submit to a physical examination in 1989, although defendant sent letters to her counsel and to a Dr. Murray Burton on March 14, 1989, advising counsel to make his client available for a physical examination with Dr. Burton and asking Dr. Burton to "contact the attorney to arrange an appointment for the claimant" and to send him a "written memo". In opposition, plaintiff's counsel affirmed that an exhaustive search failed to reveal the existence of either the March 14th letter from defendant or any communication from Dr. Burton. She also argued that defendant had completely ignored the opportunity to examine the decedent on February 22, 1989 and that, although she had previously provided defendant with the actual medical records from Harlem Hospital, she would provide written authorizations forthwith. In its December 6, 1993 order, the IAS court granted defendant's motion, stating, inter alia, "Plaintiff's attorney

received notice about physical. Never followed up. Plaintiff died. Case dismissed in the interest of justice."

Plaintiff then moved for reargument,...