Scharlack by Scharlack v. Richmond Memorial Hosp.

• Decision Date: 02 February 1987
• Citation: 511 N.Y.S.2d 380,127 A.D.2d 580
• Parties: Jon Erik SCHARLACK, an Infant, BY His Mother and Natural Guardian, Helen SCHARLACK, Respondents, v. RICHMOND MEMORIAL HOSPITAL, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 380

511 N.Y.S.2d 380

127 A.D.2d 580

Jon Erik SCHARLACK, an Infant, BY His Mother and Natural Guardian, Helen SCHARLACK, Respondents, v. RICHMOND MEMORIAL HOSPITAL, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

Feb. 2, 1987.

Jones, Hirsch, Connors & Bull, New York City (Robert J. Conroy, of counsel), for appellant Richmond Memorial Hosp.

Schiavetti, Begos & Nicholson, New York City (Kenneth Mauro, of counsel), for appellants Leroy Schwartz and John Randall.

William Greenberg, P.C., New York City, for respondents.

Before MANGANO, J.P., and KUNZEMAN, KOOPER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice, the defendants Leroy Schwartz, John Randall, and Richmond Memorial Hospital separately appeal from an order of the Supreme Court, Richmond County (Sullivan, J.), dated July 11, 1985, which conditionally denied their motions pursuant to CPLR 3126 to strike the plaintiffs' complaint.

ORDERED that the appeal by the defendants Schwartz and Randall is dismissed; and it is further,

ORDERED that the order is reversed insofar as appealed from by Richmond Memorial Hospital, on the law and as a matter of discretion, its motion is granted, and the complaint is dismissed insofar as it is asserted against it, and the action as against the remaining defendants is severed, and it is further,

ORDERED that the defendant hospital is awarded one bill of costs, payable by the plaintiffs.

This appeal follows an order of this court dated June 25, 1984 (Scharlack v. Richmond Mem. Hosp., 102 A.D.2d 886, 477 N.Y.S.2d 184) which directed, inter alia, that the plaintiffs provide certain medical authorizations and other discovery within 30 days of service of a copy of said order. Despite repeated written requests by the appellants over a period of nine months to comply with this court's order, the plaintiffs failed to do so. The defendant hospital moved to strike the complaint pursuant to CPLR 3126 or, alternatively, to compel disclosure pursuant to this court's June 25, 1984, order. The defendant doctors Schwartz and Randall also moved for the identical relief. The plaintiffs did not oppose the motion, but the plaintiffs' counsel orally informed the court that the authorizations would be supplied. Special Term conditionally granted the appellants' motions unless the plaintiffs complied with this court's order within 20 days of service of Special Term's order and paid $500 to counsel for each of the defendants.

Preliminarily, the defendants Leroy Schwartz and John Randall have waived their right to appeal from Special Term's order by accepting the medical authorizations and the sanctions imposed by Special Term (see, Rosner v. East Nassau Med. Group, 119 A.D.2d 563, 500 N.Y.S.2d 732). The defendant hospital is an "aggrieved" party to this appeal under CPLR 5511 despite the fact that the relief it requested in the alternative, to wit, compelling disclosure, was granted by Special Term. The relief it clearly sought was dismissal of the complaint and not compliance with the prior order, and the denial of so much of its motion as was for dismissal involved a substantial right of the hospital (see, Parochial Bus Systems v. Board of Educ., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d...