Opinion
2012-02-14
Mihail MASIK, appellant, v. LUTHERAN MEDICAL CENTER, defendant,Nawaiz Ahmad, etc., respondent.
Serhiy Hoshovsky, New York, N.Y., for appellant. McAloon & Friedman, P.C., New York, N.Y. (Gina DiFolco of counsel), for respondent.
Serhiy Hoshovsky, New York, N.Y., for appellant. McAloon & Friedman, P.C., New York, N.Y. (Gina DiFolco of counsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated June 4, 2010, as denied that branch of his motion which was pursuant to CPLR 3126(3) to strike the answer of the defendant Nawaiz Ahmad, and granted those branches of the cross motion of the defendant Nawaiz Ahmad which were to compel him to serve a supplemental bill of particulars and, in effect, to direct him to obtain a copy of his medical records from Ukraine and provide the same to the other parties.
ORDERED that the appeal from so much of the order as granted those branches of the cross motion of the defendant Nawaiz Ahmad which were to compel the plaintiff to serve a supplemental bill of particulars and, in effect, to direct the plaintiff to obtain a copy of his medical records from Ukraine and provide the same to the other parties are dismissed as academic in light of our determination in Masik v. Lutheran Medical Center, 92 A.D.3d 733, 939 N.Y.S.2d 95, 2012 WL 503596 Appellate Division Docket No. 2011–02412 [decided herewith]; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendant Naiwaz Ahmad.
Despite the failure of the defendant Nawaiz Ahmad to appear for a court-ordered deposition, the Supreme Court providently exercised its discretion in declining to impose the drastic remedy of striking his answer ( see CPLR 3126 [3]; Deans v. Jamaica Hosp. Med. Ctr., 64 A.D.3d 744, 883 N.Y.S.2d 313; see also Pirro Group, LLC v. One Point St., Inc., 71 A.D.3d 654, 896 N.Y.S.2d 152; Novick v. DeRosa, 51 A.D.3d 885, 858 N.Y.S.2d 371).