PHILPOTT PHILPOTT v. BERNALES

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Supreme Court, Appellate Term, New York.

Charles PHILPOTT, an infant by his mother and natural guardian Roseanne PHILPOTT and Roseanne Philpott, individually, Respondents, v. Eduardo BERNALES and Staten Island Medical Group, Appellants.

Decided: May 15, 2003

Present:  PESCE, P.J., ARONIN and GOLIA, JJ. Leahey & Johnson, P.C., New York City (Peter James Johnson, Jr., of counsel), for appellants. Simonson Hess & Leibowitz, P.C., New York City (Edward S. Goodman of counsel), for respondent.

The defendants appeal from so much of an order of the Civil Court, Richmond County (P. Straniere, J.), entered August 15, 2001, as denied their motion to compel discovery or, in the alternative, to dismiss, and from so much of a separate order of the same court, entered March 1, 2002, as denied their motion to renew and reargue.

On the court's own motion, the appeals are consolidated for purposes of disposition.

Appeal from order entered March 1, 2002 dismissed.   Although the motion is denominated as a motion to renew and reargue, it is, in substance, a motion to reargue, the denial of which is not appealable (Roman v. Konis, 254 A.D.2d 269, 678 N.Y.S.2d 121).

Order entered August 15, 2001 affirmed without costs.

 The defendants failed to submit any evidence in admissible form in support of their contention that the Supreme Court struck the note of issue when it marked this case off the trial calendar prior to its removal to Civil Court.   A case marked off the calendar does not automatically result in the vacatur of the note of issue (Basetti v. Nour, 287 A.D.2d 126, 132, 731 N.Y.S.2d 35).

 Inasmuch as the note of issue had not been vacated, the defendants were required to demonstrate that “unusual or unanticipated” circumstances or conditions arose subsequent to the filing of the note of issue which required additional. discovery to prevent substantial prejudice (Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 707 N.Y.S.2d 137;  Uniform Civil Rules for the Supreme Court and County Court [22 NYCRR] § 202.21[d];  Uniform Rules for the New York City Civil Court [22 NYCRR] § 208.17[d] ).  The lack of complete discovery due to the passage of time cannot be considered such a circumstance.   At some point, the discovery process must end.   It is noted, incidentally, that the defendants will have an opportunity at the time of trial to subpoena the witnesses whose deposition testimony is now sought.

The court below properly found that the defendants submitted no evidence of “unusual or unanticipated” circumstances, and therefore failed to meet their burden (see Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 707 N.Y.S.2d 137, supra).   It is, therefore, unnecessary for this court to address the issue of whether the defendants were substantially prejudiced.

While I am in agreement with the consolidation of the two appeals for purposes of disposition and with the dismissal of the appeal from the order entered March 1, 2002, I am of the opinion that the order entered August 15, 2001 should be modified by providing that the defendants' motion should be granted to the extent of compelling plaintiffs to comply with the defendants' discovery demands.

This is a medical malpractice case involving an infant who, it is alleged, during his birth and delivery in 1989, sustained, inter alia, injury to his brain, manifested by cerebral palsy.   It is my opinion that this case represents one of those rare instances where the standard of “unusual and unanticipated” circumstances has been met, warranting the granting of defendants' motion to the extent of compelling discovery (Uniform Civil Rules for the Supreme Court and County Court [22 NYCRR] § 202.21[d];  Uniform Rules for the New York City Civil Court [22 NYCRR] § 208.17[d] ).

“The common thread in the cases allowing further discovery is some occurrence after the filing of a note of issue that is not in the control of the party seeking further discovery and which causes actual rather than potential prejudice” (Audiovox Corp. v. Benyamini, 265 A.D.2d 135 at 139, 707 N.Y.S.2d 137).   While the long passage of time and lengthy delays in this case would not ordinarily warrant the granting of further disclosure, these factors, when considered with the nature of the injuries alleged, the age of the infant plaintiff and the developmental changes which, theoretically, he should have experienced since the filing of the note of issue, together present such “unusual or unanticipated” circumstances which will result in actual prejudice to the defendants, as to justify the granting of the disclosure requested by the defendants.

MEMORANDUM.

PESCE, P.J., and ARONIN, J., concur. GOLIA, J., dissents in part and concurs in part in a separate memorandum.