Levin v. Memorial Sloan-Kettering Hospital , 505 N.Y.S.2d 732 ( 1986 )

— In an action to recover damages for personal injuries allegedly resulting from medical malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Pizzuto, J.), dated March 13, 1985, which denied their motion to dismiss the complaint and directed that the plaintiff’s bill of particulars be deemed served.

Order affirmed, with costs.

Special Term did not abuse its discretion in permitting the plaintiff to serve her bill of particulars despite her default and the existence of a conditional order of preclusion. The plaintiff was unaware that her first attorney, who commenced the action, failed to submit a bill of particulars and failed to comply with the conditional order of preclusion. It also appears that that attorney was suspended from the practice of law in early 1983, and that the plaintiff had no knowledge of this fact. We find that the facts herein provide a reasonable excuse for the plaintiff’s default.

Further, a physician’s affidavit submitted by the plaintiff in opposition to the defendants’ motion to dismiss sufficiently established a meritorious cause of action, as it stated that, within a reasonable degree of medical certainty, there was a deviation from proper medical practice in the surgical procedure in question.

The plaintiff having shown that her default was excusable and that she had a meritorious cause of action, Special Term properly directed that her bill of particulars be deemed served. Lawrence, J. P., Fiber, Kooper and Spatt, JJ., concur.