Dugan v. Seymour ( 1986 )

In a medical malpractice action, the defendants Seymour and Bloom and the defendant Southside Hospital separately appeal from an order of the Supreme Court, Suffolk County (McCarthy, J.), dated February 19, 1985, which denied their respective motions for summary judgment.

Order affirmed, without costs or disbursements.

On appeal, the defendants present this matter as a simple one. They contend that the plaintiff’s failure to comply with a conditional order of preclusion resulted in his being absolutely precluded from establishing a prima facie case, thus warranting summary judgment in their favor (see, e.g., Smith v Surin, 34 AD2d 588, appeal dismissed 27 NY2d 536).

The motions to preclude did not result in a conditional order of preclusion, but, rather, the motions were granted by order dated September 11, 1984 (Lama, J.), only to the extent of directing the plaintiff pro se to serve a bill of particulars. Justice Lama’s order did not provide that the plaintiff would be precluded in the event that he failed to comply with the time limitation in the order (see, CPLR 3042 [e]). Accordingly, there was no "conditional order” capable of becoming absolute upon the plaintiff’s failure to serve a bill of particulars. Thus, summary judgment in favor of the defendants was not warranted. Gibbons, J. P., Weinstein, Lawrence and Fiber, JJ., concur.