Hodson v Wasserman

[*1] Hodson v Wasserman 2010 NY Slip Op 50259(U) [26 Misc 3d 139(A)] Decided on February 24, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
.

Hope Elizabeth Hodson, Plaintiff-Appellant, 570275/06

against

Alan J. Wasserman, D.D.S., Defendant-Respondent.

Plaintiff, as limited by her briefs, appeals from (1) those portions of an order of the Civil Court of the City of New York, New York County (Saliann Scarpulla, J.), dated July 29, 2008, which denied her motion to strike defendant's answer and granted defendant's cross motion to amend the answer; (2) an order (same court and Judge), dated August 21, 2008, which amended the aforesaid order to measure the compliance dates therein from August 21, 2008; and (3) an order (same court, Arlene P. Bluth, J.), entered November 21, 2008, which denied as moot plaintiff's motion to stay enforcement of the July 29, 2008 order until August 18, 2008.

Per Curiam.

Orders (Saliann Scarpulla, J.), dated July 29, 2008 and August 21, 2008, and order (Arlene P. Bluth, J.), entered November 21, 2008, affirmed, with $10 costs.

Civil Court providently exercised its discretion in permitting defendant to amend his answer to assert a defense under General Obligations Law § 15-108 (see Hill v St. Clare's Hosp., 67 NY2d 72 [1986]), since plaintiff is not prejudiced by that amendment (see Whelan v Kawaskai Motors Corp., 92 NY2d 298 [1998]), and the amendment is not palpably insufficient or patently devoid of merit (see Thompson v Cooper, 24 AD3d 203 [2005]; Davis & Davis, P.C. v Morson, 286 AD2d 584 [2001]; see also Lucido v Mancuso, 49 AD3d 220 [2008]). Moreover, assuming, as appears from the record, that the court did not permit plaintiff to withdraw her cross motion to strike defendant's answer and that the application remained pending before the court, the court providently exercised its discretion in denying that motion. We note, as we did in Hodson v Goldsmith (24 Misc 3d 126[A] [2009], 2009 NY Slip Op 51250[U]), that "the highly contentious and seemingly unending discovery in this long pending dental malpractice case is attributable in large measure to plaintiff's own overzealous litigation practices ..." Accordingly, we direct the parties, to the extent they have not already done so, to comply with Judge Scarpulla's disclosure directives within 45 days of the date of this decision and order. We remind the parties of their obligation to duly comply with disclosure orders (see Figdor v City of NY, 33 AD3d 560 [2006]), and encourage Civil Court to continue to actively manage disclosure in this [*2]decade-old lawsuit.

We have considered plaintiff's remaining arguments and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 24, 2010