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Miccarelli v. Fleiss
Citations: 219 A.D.2d 469; 631 N.Y.S.2d 159; 1995 N.Y. App. Div. LEXIS 9143
Court: Appellate Division of the Supreme Court of the State of New York; September 7, 1995; New York; State Appellate Court
The Supreme Court of Bronx County, presided by Justice Luis Gonzalez, issued an order on April 21, 1994, which was later reversed. The court initially denied the motion of the defendant physicians to strike the plaintiffs' response to item #8 of their verified bill of particulars and granted the plaintiffs' cross motion to strike item #10 from the demand. However, the appellate court found that the IAS Court had abused its discretion in both instances. The appellate court determined that the plaintiffs' response to item #8 failed to adequately specify the acts and omissions constituting their claims of negligence against the physician defendants. The response was deemed vague and nonresponsive, covering all potential medical malpractice claims without distinguishing the individual defendants' actions. The court emphasized that if the plaintiffs lacked the necessary information, they should indicate their inability to respond and subsequently provide a supplemental bill of particulars upon acquiring the information. Additionally, the court found that striking item #10, which requested a statement on how the alleged injuries were caused by the claimed negligence, was also an abuse of discretion. Item #10 was not seeking evidentiary information but rather a general explanation of causation, which the plaintiffs failed to timely object to, as required by CPLR 3042. The appellate court reversed the IAS Court's order, granting the defendants' motion and denying the plaintiffs' cross motion, instructing the plaintiffs to respond to both item #8 and reinstate item #10 of the demand for a verified bill of particulars, without costs.