Josephine Cummings v Our Lady of Mercy Medical Center

Cummings v Our Lady of Mercy Med. Ctr. 2005 NY Slip Op 09631 [24 AD3d 233] December 15, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Josephine Cummings, as Administratrix of the Estate of John Lee Gordon, Deceased, Respondent,
v
Our Lady of Mercy Medical Center et al., Appellants, and Mount Sinai Hospital et al., Respondents, et al., Defendants.

—[*1]

Orders, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered February 13, 2004, which, inter alia, denied defendants-appellants' motion to dismiss the complaint for failure to comply with court-ordered discovery, unanimously affirmed, with separate bills of costs.

The conditional order of preclusion upon which defendants rely required only that plaintiff serve distinguishable bills of particulars responsive to the demands of each defendant; no other deficiencies in plaintiff's bills of particulars were specified. Inasmuch as plaintiff complied with the conditional order by serving distinguishable bills that appropriately amplified the pleadings, and will limit the proof and prevent surprise at trial (see Philipp Bros. Export [*2]Corp. v Acero Peruano S.A., 88 AD2d 529 [1982]), no occasion was presented for the extreme relief sought by defendants. Concur—Buckley, P.J., Andrias, Catterson and Malone, JJ.