HEFFRAN v. ST VINCENT MEDICAL CENTER OF RICHMOND (1997)

In a medical malpractice action to recover damages for wrongful death, etc., all of the defendants except Dr. O'Neill appeal from an order of the Supreme Court, Richmond County (Amann, J.), dated September 28, 1995, which granted their motion for a final order of preclusion only to the extent of directing the plaintiff to serve seven separate responses to their demands for bills of particulars.

ORDERED that the order is affirmed, with costs.

Contrary to the appellants' contention, the Supreme Court did not improvidently exercise its discretion in denying their motion for a final order of preclusion.   Although a prior order of the same court, dated April 26, 1995, directed the plaintiff to serve additional responses within 60 days in the event that her bill of particulars was deemed to be lacking in specificity, the prior order did not provide that she would be precluded from offering evidence if that time limitation was not met.   Accordingly, the prior order was not a conditional order of preclusion that would entitle the appellants to a final order of preclusion upon the plaintiff's default (see, Sher v. Pellicano, 215 A.D.2d 369, 626 N.Y.S.2d 975;  Oliveri v. Carter, 194 A.D.2d 525, 598 N.Y.S.2d 85).

The appellants' remaining contention is without merit.

MEMORANDUM BY THE COURT.