Smith v. Palmieri
| Decision Date | 02 July 1984 |
| Docket Number | No. 2,No. 1,1,2 |
| Citation | 477 N.Y.S.2d 206,103 A.D.2d 739 |
| Parties | Alvert T. SMITH, et al., Appellants, v. Thomas Joseph PALMIERI, Respondent, et al., Defendants. (Action) Alvert T. SMITH, et al., Appellants, v. Charles M. FERMON, et al., Respondents. (Action) |
| Court | New York Supreme Court — Appellate Division |
Morris J. Eisen and Joseph P. Napoli, New York City (Steven Di Joseph and Edward P. Dunphy, New York City, of counsel), for appellants.
Richard C. Mooney & Associates, Hempstead (Madeleine Stryker Hirschhorn and Kevin A. McCarthy, Hempstead, of counsel), for respondent Thomas Joseph Palmieri.
J.M. Furey & R.J. Furey, P.C., Hempstead (Gary A. Wagner, Hempstead, of
counsel), for respondents Charles M. Fermon and Long Island Jewish Physicians Ass'n.
Bower & Gardner, New York City, Siff & Newman, P.C. (Thomas R. Newman, Ignatius John Melito and Lissa Griffin, New York City, of counsel), for respondent Long Island Jewish-Hillside Medical Center.
Before TITONE, J.P., and GIBBONS, BROWN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In two medical malpractice actions arising out of the same series of occurrences, plaintiffs appeal in Action No. 1 from (1) an order of the Supreme Court, Queens County, dated September 8, 1982, which granted so much of defendant Palmieri's motion as sought to preclude them from offering evidence against him at trial, and (2) an order of the same court, dated June 24, 1983, which granted defendant Palmieri's motion for summary judgment dismissing the complaint as against him based upon the foregoing order of preclusion and, in Action No. 2, plaintiffs appeal from an order and judgment (one paper) of the same court (DURANTE, J.), dated April 19, 1983, which, inter alia, dismissed the complaint in Action No. 2.
Orders dated September 8, 1982 and June 24, 1983, reversed, on the law, without costs or disbursements, and matter remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.
Order and judgment dated April 19, 1983, affirmed, without costs or disbursements.
On or about February 17, 1981, plaintiffs commenced a medical malpractice action (Action No. 1) against Thomas Palmieri, Charles Fermon, the Long Island Jewish Physicians Association and the Long Island Jewish-Hillside Medical Center, inter alia, to recover damages for injuries allegedly sustained by plaintiff Alvert Smith during the course of his hospitalization at Long Island Jewish-Hillside Medical Center. In the ordinary course of events, issue was joined and bills of particulars were demanded from the plaintiffs and, upon the latter's failure to timely serve their bills, a conditional order of preclusion was granted by the Supreme Court, Queens County (LAKRITZ, J.), on July 1, 1981, precluding the plaintiffs "unless a responsive bill of particulars is served within 30 days after receipt of the Long Island Jewish Hillside Hospital records" relating to the injured plaintiff's hospitalization (emphasis supplied). When a bill of particulars still had not been served by June 22, 1982, defendant Palmieri sought, and on September 8, 1982 was granted, an order of preclusion. On June 24, 1983, his subsequent motion for summary judgment was granted on the basis of the outstanding preclusion order. Plaintiffs have consistently maintained that the records in question have never been received.
Meanwhile, plaintiffs defaulted on a motion for summary judgment brought by the remaining codefendants based on the failure to comply with Justice LAKRITZ's conditional order of preclusion dated July 1, 1981, and, during the pendency of their appeal (subsequently dismissed) from an order denying their motion for leave to reargue the resulting grant of summary judgment, plaintiffs commenced a second medical malpractice action (No. 2) against those codefendants based upon the same allegations which underlay the original complaint. In September, 1982 the defendants in Action No. 2 separately moved to dismiss the complaint therein on the ground, inter alia, of res judicata, whereupon the plaintiffs cross-moved to vacate their default on the underlying summary judgment motion in Action No. 1. Thereafter, on April 19, 1983, an order and judgment was entered in Action No. 2, in which the defendants' motions were granted, plaintiffs' cross motion was denied, and the complaint was dismissed.
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