Leon v St. Vincent De Paul Residence

Leon v St. Vincent De Paul Residence 2008 NY Slip Op 08415 [56 AD3d 265] November 6, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

Nazario Leon, Respondent,
v
St. Vincent De Paul Residence, Appellant.

—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner and Judy C. Selmeci of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered on or about January 26, 2008, which, insofar as appealed from as limited by the briefs in this action for medical malpractice, denied defendant's motion to vacate the note of issue and extend its time to move for summary judgment, unanimously affirmed, without costs.

The motion court properly exercised its discretion in denying defendant's motion, which was made seven months after the note of issue was filed and based on the assertion that the note of issue inaccurately stated that all discovery was complete when defendant had not taken plaintiff's deposition or conducted an independent medical examination of him. As the court recognized, a deposition of plaintiff would be futile considering that he suffered from advanced dementia, and the record shows that defendant deposed plaintiff's daughter, who held his power of attorney and was involved in his life and health care. Furthermore, defendant waived its right to any other discovery by failing to comply with the discovery deadlines set forth in the court's compliance order, which contained a waiver clause (see Quintanna v Rogers, 306 AD2d 167 [2003]; Mateo v City of New York, 282 AD2d 313 [2001]). Concur—Andrias, J.P., Saxe, Gonzalez, Catterson and Acosta, JJ.