Hodson v Goldsmith

[*1] Hodson v Goldsmith 2007 NY Slip Op 52424(U) [18 Misc 3d 127(A)] Decided on December 21, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, DAVIS, JJ
07-176-177.

Hope Elizabeth Hodson, Plaintiff-Respondent- Cross-Appellant,

against

Jay P. Goldsmith, D.M.D., Defendant-Appellant- Cross-Respondent.

Defendant, as limited by his brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Cynthia S. Kern, J.), entered November 24, 2006, which directed him to appear for a deposition and respond to Items 1 and 2 of plaintiff's third notice to produce, and denied defendant's motion to strike plaintiff's amended bill of particulars. Plaintiff, as limited by her brief, cross-appeals from so much of the aforesaid order as denied her motion to hold defendant in contempt and to strike the answer.

Per Curiam.
Order (Cynthia S. Kern, J.), entered November 24, 2006, modified to grant defendant's motion to the extent of striking those portions of paragraphs "D" and "H" of plaintiff's amended bill of particulars as set forth theories not originally asserted in the complaint, and as modified, order affirmed, without costs.
Plaintiff's amended bill of particulars improperly alleged new theories that were not originally asserted in the dental malpractice complaint (see Behren v. Warren Gorham & Lamont, 24 AD3d 312 [2005]). Plaintiff's claims of defamation, tortious interference with contract and violation of medical privacy rules arose not from defendant's alleged malpractice but rather, from conduct purportedly occurring during the litigation itself. We perceive no abuse of the court's broad discretion to supervise pre-trial disclosure (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]). We have considered the parties' remaining arguments and find them unavailing.
This Constitutes the Decision and Order of the Court. [*2]
Decision Date: December 21, 2007