Bernabe v. Long Island College Hospital ( 1988 )

In a medical malpractice action, the defendant Albert Cook appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated October 14, 1986, as denied his motion for an order dismissing the complaint insofar as it is asserted against him pursuant to CPLR 3126.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff’s delay in serving a supplemental bill of particulars did not entail the willful or contumacious violation of a court order. The plaintiff was in need of additional pretrial discovery in order to be able to frame an adequate bill of particulars. Under the circumstances, the Supreme Court, Kings County, did not err in refusing to impose the harsh sanction of dismissal (CPLR 3126; see, Corinno Civetta Constr. Corp. v City of New York, 67 NY2d 297, rearg denied sub nom. Honeywell, Inc. v City of New York, 68 NY2d 753; cf., Zletz v Wetanson, 67 NY2d 711). Bracken, J. P., Weinstein, Rubin and Kooper, JJ., concur.