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HILLIARD, TERRY D. v. HIGHLAND HOSPITAL
Citations: 88 A.D.3d 1291; 930 N.Y.2d 390Docket: CA 10-01225
Court: Appellate Division of the Supreme Court of the State of New York; October 7, 2011; New York; State Appellate Court
Original Court Document: View Document
The Supreme Court of the State of New York, Appellate Division, reversed an order and judgment from Monroe County that had granted Highland Hospital's cross motion to dismiss Terry D. Hilliard's medical malpractice complaint. The case, initiated in 2002, alleged malpractice spanning from 1985 to 2000. Highland Hospital had issued a 90-day demand in July 2008 for Hilliard to file a note of issue and statement of readiness. After Hilliard failed to comply, the hospital moved to dismiss the complaint, but the Supreme Court denied this motion and set deadlines for Hilliard to file the note of issue. However, Hilliard did not meet the deadlines, and a subsequent motion was made regarding alleged spoliation of his medical records. Highland Hospital again cross-moved to dismiss based on the failure to file the note of issue. The appellate court found that the lower court erred in granting this cross motion because the hospital did not issue a second 90-day demand prior to the cross motion, which is a strict procedural requirement under CPLR 3126 for dismissal due to lack of prosecution. The appellate court emphasized that while the court had set deadlines for filing the note of issue, it did not explicitly warn Hilliard that failing to comply would result in dismissal. As such, the appellate court reinstated Hilliard's complaint, noting that the procedural requirements had not been met by the defendant. In a related appeal, Hilliard sought leave to renew and reargue his spoliation motion and opposition to the cross motion. However, since he had not provided new evidence, this request was treated as a motion to reargue, from which no appeal can be taken. The court did not address Hilliard's requests under CPLR 5015, given the decision in the first appeal.