Pickens v. St. John's Hosp.

• Decision Date: 30 March 1998
• Citation: 670 N.Y.S.2d 333,248 A.D.2d 693
• Parties: 1998 N.Y. Slip Op. 2999 Melinda PICKENS, etc., Respondent, v. ST. JOHN'S HOSPITAL, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 333

670 N.Y.S.2d 333

1998 N.Y. Slip Op. 2999

Melinda PICKENS, etc., Respondent, v. ST. JOHN'S HOSPITAL, et al., Appellants.

Supreme Court of New York, Appellate Division,

Second Department.

March 30, 1998.

Heidell, Pittoni, Murphy & Bach, P.C., New York City (Charles L. Bach, Jr., Daniel S. Ratner, and Matthew S. Hirsch, of counsel), for appellant North Shore University Hospital.

Fitzgerald & Fitzgerald, P.C., Yonkers (John E. Fitzgerald, Christopher J. Lennon, and Michael D. Neuman, of counsel), for respondent.

In an action to recover damages for medical malpractice, (1) the defendant North Shore University Hospital appeals from so much of an order of the Supreme Court, Queens County (Durante, J.), dated April 1, 1997, as granted the plaintiffs' motion for leave to file a note of issue and denied its cross motion, inter alia, to dismiss the complaint pursuant to CPLR 3126 on the ground that the plaintiffs failed to comply with stated portions of a preliminary conference order, and (2) the defendant St. John's Hospital separately appeals from so much of the same order as denied its cross motion to dismiss the complaint.

ORDERED that the appeal of the defendant St. John's Hospital is dismissed, for failure to perfect the appeal in accordance with the rules of this court (see, 22 NYCRR 670.8[c], [e] ); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendant North Shore University Hospital; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The Supreme Court was correct in granting, upon condition, the plaintiffs' motion for leave to file a note of issue (see, CPLR 3402). Contrary to the contention by North Shore University Hospital, the preliminary conference order cannot be deemed a 90-day notice of demand pursuant to CPLR 3216 since it does not conform to the provisions of that statute (see, Chase v. Scavuzzo, 87 N.Y.2d 228, 233, 638 N.Y.S.2d 587, 661 N.E.2d 1368; Giaimo v. Roller Derby Skate Corp., 234 A.D.2d 340, 650 N.Y.S.2d 791; Ameropan Realty Corp. v. Rangeley Lakes Corp., 222 A.D.2d 631, 635 N.Y.S.2d 691).

Furthermore, the Supreme Court providently exercised its discretion in denying the cross motion of North Shore University Hospital, inter alia, to dismiss the complaint pursuant to CPLR 3126 on the ground that the plaintiffs failed to comply with stated portions of the preliminary conference order since there was no showing of willful or contumacious conduct (cf....