Darell Murray, appellant, v. Brookhaven Memorial Hospital Medical Center, et al., respondents. (2010)

Supreme Court, Appellate Division, Second Department, New York.

Darell Murray, appellant, v. Brookhaven Memorial Hospital Medical Center, et al., respondents.

2009-01268 (Index No. 4764 /08)

Decided: May 11, 2010

MARK C. DILLON, J.P. FRED T. SANTUCCI ANITA R. FLORIO L. PRISCILLA HALL, JJ.

Oshman & Mirisola, LLP, New York, N.Y. (David L. Kremen of counsel), for appellant. Vardaro & Helwig, Smithtown, N.Y. (Kristen Petersen Hofer of counsel), for respondent Brookhaven Memorial Hospital Medical Center. Marulli, Lindenbaum, Edelman & Tomaszewski, LLP, New York, N.Y. (Sandford R. Lindenbaum and Hope H. Lo of counsel), for respondent Shlomo Piontkowski. Chesney & Murphy, LLP, Baldwin, N.Y. (Michael Jenks and Charles C. Nicholas of counsel), for respondent Ravindra Kota. Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for respondent St. Charles Hospital.

Submitted-November 24, 2009

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated January 6, 2009, as denied the plaintiff's motion, in effect, to vacate so much of a “preliminary conference stipulation and order” of the same court dated July 31, 2008, as, in effect, over the plaintiff's objection, granted the defendants' oral application to strike the word “reckless” from the plaintiff's verified bill of particulars.

ORDERED that the order dated January 6, 2009, is reversed insofar as appealed from, on the law, with one bill of costs, and the plaintiff's motion, in effect, to vacate so much of the “preliminary conference stipulation and order” dated July 31, 2008, as, in effect, over the plaintiff's objection, granted the defendants' oral application to strike the word “reckless” from the plaintiff's verified bill of particulars, is granted.

Under the circumstances of this case, the Supreme Court improperly, in effect, granted the defendants' oral application to strike the term “reckless” from the plaintiff's verified bill of particulars. Inasmuch as the determination of this particular application necessarily involved a consideration of evidentiary sufficiency, a formal motion on notice to the plaintiff should have been made (see CPLR 2214; see also Williams v. Naylor, 64 AD3d 588, 589; Padro v. Boulevard Hosp., 92 A.D.2d 888; see generally CPLR 1602; CPLR 3212). Accordingly, the Supreme Court erred in denying the plaintiff's motion, in effect, to vacate so much of the “preliminary conference stipulation and order” dated July 31, 2008, as, in effect, granted the defendants' oral application.

In light of our determination, it is unnecessary to reach the plaintiff's remaining contentions.

DILLON, J.P., SANTUCCI, FLORIO and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Was this helpful?

Why was this helpful?

Easy to understand

Solved my problem

Other

Why was this not helpful?

Missing the information I need

Too complicated / too many steps

Out of date

Other

Thank you for your feedback!

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go To Learn About The Law