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Milton v. Smithtown General Hospital
Citations: 96 A.D.2d 855; 465 N.Y.S.2d 770; 1983 N.Y. App. Div. LEXIS 19447
Court: Appellate Division of the Supreme Court of the State of New York; August 8, 1983; New York; State Appellate Court
In a medical malpractice case, Smithtown General Hospital appealed a Supreme Court order that denied its motion to preclude the plaintiff from presenting evidence due to her failure to serve a bill of particulars on time. The appellate court reversed the order, granting the hospital's motion to preclude the plaintiff from offering evidence unless she serves a responsive bill of particulars. The plaintiff was given an extension to serve the bill, which must be done within ten days of receiving notice of the appellate order. The plaintiff's failure to comply with the prior order was attributed to a law office oversight, specifically that her counsel filed the bill instead of mailing it, which the court characterized as a mere administrative error rather than a willful disregard of procedural rules. The hospital's motion to preclude was prompted by the plaintiff's noncompliance, which came to light during her deposition. Although the plaintiff's counsel assured the court that a bill would be served shortly thereafter, the hospital moved to preclude before the bill was served. The court found that while the plaintiff did not comply with the earlier order, the circumstances did not justify the harsh sanction of preclusion, especially since the hospital had also failed to comply with a discovery request. The appellate court determined that the lower court abused its discretion by granting the motion to preclude without considering these factors, and thus, the order was reversed in part.