Opinion
2001-08865
Argued November 26, 2002.
March 3, 2003.
In an action to recover damages for medical malpractice, defendants Michael C. Mesbah, Ira Kenneth Berliner, and Berliner Mesbah OB/GYN, P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Skelos, J.), dated September 11, 2001, as conditionally granted the plaintiff's motion, in effect, to vacate so much of a prior order of the same court (O'Connell, J.), dated August 12, 1999, as granted their motion to dismiss the complaint insofar as asserted against them for failure to comply with court-ordered discovery unless the plaintiff furnished such discovery to those defendants within 30 days thereof, and, in effect, denied their cross application to dismiss the complaint insofar as asserted against them for the plaintiff's failure to comply with court-ordered discovery, and the defendants Michael A. Ferragamo, Jr., Robert A. Edelman, and Urological Surgeons of L.I., P.C., separately appeal, as limited by their brief, from so much of the same order as conditionally granted that branch of the plaintiff's motion which was to vacate so much of the prior order dated August 12, 1999, as granted their motion to dismiss the plaintiff's complaint insofar as asserted against them, and denied their cross motion to dismiss the complaint insofar as asserted against them for the plaintiff's failure to comply with court-ordered discovery.
Bartlett, McDonough, Bastone Monaghan, LLP (Mauro Goldberg Lilling, LLP, Great Neck, N.Y. [Madeleine C. Petrara and Caryn Lilling] of counsel), for appellants Michael C. Mesbah, Ira Keith Berliner, and Berliner Mesbah, OB/GYN, P.C.
Kelly, Rode Kelly, Mineola, N.Y. (Shawn P. Kelly and Anthony U. DeVito of counsel), for appellants Michael A. Ferragamo, Jr., Robert A. Edelman, and Urological Surgeons of L.I., P.C.
Spinola Mirotznik (Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for respondent.
Before: DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with one bill of costs to the respondents appearing separately and filing separate briefs, the motion is denied, the order dated August 12, 1999, is reinstated, the cross application and cross motion are granted, and the complaint is dismissed.
Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in conditionally granting the plaintiff's motion and reinstating the complaint (see Jenkinson v. Naccarto, 286 A.D.2d 420; Weitzenberg v. Nassau County Dept. of Recreation Parks, 282 A.D.2d 741; Battaglia v. Hofmeister, 100 A.D.2d 833).
RITTER, J.P., FRIEDMANN, LUCIANO and H. MILLER, JJ., concur.