Murdock v. Center for Special Surgery
| Decision Date | 27 December 1993 |
| Parties | Audrey MURDOCK, Respondent, v. CENTER FOR SPECIAL SURGERY, et al., Defendants, Profiles and Contours, Inc., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Morris & Duffy, New York City (Patricia D'Alvia, of counsel), for appellants.
Audrey Murdock, respondent pro se.
Before THOMPSON, J.P., and BRACKEN, BALLETTA and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, the defendants Profiles and Contours, Inc., Andrew P. Ordon, Najma Nadaf, Mark A. Erlich, and Debra Hirsch appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated August 20, 1991, as denied their motion for summary judgment, and granted the plaintiff's cross motion to vacate her default in complying with a conditional order of preclusion.
ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, the motion for summary judgment is granted, the complaint is dismissed insofar as it is asserted against the appellants, the cross motion is denied, and the action against the remaining defendants is severed.
In an order dated September 27, 1990, the appellants were precluded from adducing certain evidence at the trial unless the "plaintiff serves [further] bills of particulars corresponding to the demand of each defendant" within 30 days after service of a copy of that order upon her. This order was served upon the plaintiff's counsel on October 17, 1990, but the plaintiff did not serve her supplemental bill of particulars until February 7, 1991.
Prior to the service of the supplemental bill, the appellants moved to dismiss the complaint based upon the plaintiff's failure to timely comply with the conditional preclusion order. The plaintiff cross-moved to vacate her default in failing to comply. The Supreme Court denied the appellants' motion and granted the cross motion. We now reverse.
"In order to excuse the failure to timely comply with a conditional order of preclusion [a] plaintiff must demonstrate a reasonable excuse for the delay and the existence of a meritorious cause of action" (Higgins v. Community Hosp. at Glen Cove, 135 A.D.2d 607, 609, 522 N.Y.S.2d 186; see also, Vanek v. Mercy Hosp., 162 A.D.2d 680, 557 N.Y.S.2d 114; Smith v. Lefrak Org., 96 A.D.2d 859, 465 N.Y.S.2d 777, affd. 60 N.Y.2d 828, 469 N.Y.S.2d 693, 457 N.E.2d 799). In the case at bar, the law-office failure of the plaintiff's attorney which allegedly resulted in the loss of the conditional order of preclusion is insufficient to excuse the lengthy delay in complying with the order (see, CPLR 2005...
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