Williams v. Way
| Decision Date | 24 December 2001 |
| Docket Number | 00-07400,2 |
| Parties | BRYAN WILLIAMS, ETC., APPELLANT, v. GEORGE T. C. WAY, ETC., ET AL., RESPONDENTS. 2000-07400 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Argued - |
| Court | New York Supreme Court — Appellate Division |
Kramer, Dillof, Tessel, Duffy & Moore, New York, N.Y. (Matthew Gaier and Norman Bard of counsel), for appellant.
Meiselman, Denlea, Packman & Eberz, P.C., White Plains, N.Y. (Stephen Fox of counsel), for respondents George T. C. Way, George T. C. Way, P.C., and Rita A. Brannen, Chief Fiscal Officer of Dutchess County Acting as Administrator of the Estate of George Montgomery, M.D.
Phelan, Burke & Scolamiero, Llp, Albany, N.Y. (Stephen Trzcinski of counsel), for respondent Vassar Brothers Hospital.
Steinberg & Symer, Poughkeepsie, N.Y. (Jonathan E. Symer and Ellen Fischer Bopp of counsel), for respondent Donald L. Goldfarb.
DECISION & ORDER
Myriam J. Altman, J.P.
Gloria Goldstein
Leo F. McGinity
In an action to recover damages for personal injuries and for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Jiudice, J.H.O.), dated July 5, 2000, which granted the defendants' respective motions to preclude him from offering expert testimony at trial.
ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the motions are denied.
The infant plaintiff was allegedly injured at the time of his birth as a result of a complication from a prenatal infection. On September 28, 1998, one of the defendants, George Montgomery, died. By order dated November 17, 1998, the Supreme Court directed Montgomery's attorneys, among others, to take reasonable steps to substitute his estate as a defendant. The Supreme Court also directed the plaintiff to serve his responses to the defendants' demand for expert witness information within two weeks of that substitution. After being informed that the decedent's widow had no intention of probating his estate, the plaintiff moved to appoint an administrator, and by order dated June 22, 1999, Rita A. Brannen, the Chief Fiscal Officer of Dutchess County acting as Administrator of the Estate of George Montgomery, M.D. (hereinafter Montgomery's estate), was substituted as a party defendant in place of Montgomery. The plaintiff served his responses to the defendants' demands two weeks before the scheduled trial date of June 1, 2000.
The defendants moved to preclude the plaintiff from offering expert testimony, contending, inter alia, that the expert witness disclosure was untimely in violation of the prior order dated November 17, 1998. The Supreme Court granted the motions, and we reverse.
The order of the Supreme Court, dated November 17, 1998, was a nullity as to Montgomery's estate since it was made while the proceedings were automatically stayed as a result of Dr. Montgomery's death (see, Matter of Einstoss, 26 N.Y.2d 181; Kelly v. Methodist Hosp., 276 A.D.2d 672; Silvagnoli v. Consolidated Edison Employee Mut. Aid Socy., 112 A.D.2d 819). Therefore, the Supreme Court erred in imposing a sanction on the plaintiff for violating that order as to Dr. Montgomery's estate. Moreover,...
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