Williamson v. Brookdale Hospital Medical Center ( 1992 )

In an action to recover damages for medical malpractice, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Pizzuto, J.), dated June 14, 1990, as, inter alia, denied its cross motion for a final order of preclusion and for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

We disagree with the defendant’s contention that the court should have granted its cross motion for a final order of preclusion based upon the plaintiff’s failure to comply with its demand for a bill of particulars. It is unclear whether the conditional order was ever served upon the plaintiff’s attorneys. In any event, shortly after the court granted the conditional order of preclusion the plaintiff died. The record reveals that an administrator was subsequently appointed and substituted in this action in his stead. Moreover, service of the bill of particulars was hindered by the defendant’s failure to provide the plaintiff’s attorneys with a copy of the hospital record (see, Smith v Palmieri, 103 AD2d 739). Accordingly, the court did not improvidently exercise its discretion in permitting the plaintiff additional time to serve a bill of particulars (cf., Donovan v Getty Petroleum Corp., 174 AD2d 706; White v Leonard, 140 AD2d 518). Thompson, J. P., Lawrence, Copertino and Santucci, JJ., concur.