Postel v. New York University Hosp.

• Decision Date: 08 June 1999
• Citation: Postel v. New York University Hosp., 691 N.Y.S.2d 468, 262 A.D.2d 40 (N.Y. App. Div. 1999)
• Parties: Patricia POSTEL, et al., Plaintiffs-Appellants, v. NEW YORK UNIVERSITY HOSPITAL, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 468

691 N.Y.S.2d 468

Patricia POSTEL, et al., Plaintiffs-Appellants, v. NEW YORK UNIVERSITY HOSPITAL, Defendant-Respondent.

Supreme Court, Appellate Division, First Department, New York.

June 8, 1999.

Robin Mary Heaney, for Plaintiffs-Appellants.

Steven C. Mandell, for Defendant-Respondent.

ROSENBERGER, J.P., NARDELLI, LERNER, SAXE and FRIEDMAN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered August 26, 1998, which, upon plaintiffs' motion for renewal, reargument and vacatur of the court's prior order dismissing the complaint, treated it as solely a motion for reargument and denied it as untimely, unanimously reversed, on the law, without costs, the motion treated as a motion to renew and granted as such, and the complaint reinstated, conditioned on plaintiffs' counsel paying $1,000 to defendant within 60 days of the date of this order. Plaintiffs' appeal from the order, same court and Justice, entered December 24, 1997, dismissing the complaint at a compliance conference for failure to comply with discovery orders, unanimously dismissed, without costs, as taken from a nonappealable order.

Plaintiffs commenced the underlying action in July 1991 to recover for injuries sustained by Patricia Postel on September 23, 1988, when she fell and fractured her hip while a patient at defendant hospital. Issue was joined by service of the answer with discovery demands in August 1991. Mrs. Postel had a long history of illnesses and treatments by various doctors, which defendant argued could be relevant in determining the extent to which her current impairments were caused by pre-existing conditions rather than by the alleged accident. Accordingly, defendant sought medical authorizations to obtain her records from these doctors and hospitals. By June 1996, plaintiffs had furnished authorizations for two hospitals and three doctors, but had neglected to furnish them for another physician and hospital. Orders directed plaintiff to provide the outstanding authorizations. Plaintiff had supplied all other requested authorizations. On defendant's part, several compliance orders were needed to induce the hospital to furnish the names and addresses of the nurses on duty when plaintiff fell and to produce the supervising nurse for a deposition.

At a conference on December 11, 1997, the court acquiesced to defendant's oral request to dismiss the action based on plaintiffs' discovery defaults, a sanction authorized by CPLR 3126. However, defendant had never made a motion on notice indicating that it would be seeking this drastic remedy. The dismissal was embodied in an order entered December 24, 1997, the first of the orders from which plaintiff purports to appeal.

In their February 20, 1998 motion (denominated a motion for renewal, reargument and vacatur), plaintiffs argued that they had substantially complied with the court's discovery orders. They attached documentary proof of such compliance, which proof had not been previously produced on December 11, 1997. Plaintiffs additionally argued that the court's unexpected dismissal of the case at a compliance conference was procedurally improper because a motion on notice is required. However, the court accepted defendant's argument that this was merely a reargument motion rather than a renewal motion due to the alleged absence of any new evidence, and...