Soifer v. Mount Sinai Hospital

• Decision Date: 22 May 1978
• Citation: Soifer v. Mount Sinai Hospital, 405 N.Y.S.2d 116, 63 A.D.2d 713 (N.Y. App. Div. 1978)
• Parties: Bruka SOIFER et al., Respondents, v. The MOUNT SINAI HOSPITAL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 116

405 N.Y.S.2d 116

63 A.D.2d 713

Bruka SOIFER et al., Respondents, v.The MOUNT SINAI HOSPITAL, Appellant.

Supreme Court, Appellate Division,Second Department.

May 22, 1978.

Bower & Gardner, New York City(Thomas R. Newman and Steven DiJoseph, New York City, of counsel), for appellant.

Krause & Krause, New York City(Leslie Elliot Krause, New York City, of counsel), for respondents.

Before MARTUSCELLO, J. P., and SUOZZI, RABIN and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, defendant appeals from an order of the Supreme Court, Queens County, dated November 30, 1977, which (1) granted plaintiffs' motion to compel discovery"of any and all incident reports pertaining to the occurrence alleged in the complaint in the treatment and care rendered to the plaintiff, Bruka Soifer" and (2) denied defendant's cross motion for a protective order on the ground that defendant had not timely moved for such an order within the five-day period.

Order reversed, with $50 costs and disbursements, motion denied and cross motion granted.

Defendant's failure to move for a protective order within five days after service of the notice for discovery and inspection, as provided for in CPLR 3122, is not an absolute bar to the granting of a motion for a protective order(Whittington v. Rectors, Wardens & Vestry of Church of Advent...