Munz v. La Guardia Hospital

— In a wrongful death action predicated upon a claim of medical malpractice, defendant Dr. Hong Rae Cho appeals (1) from an order of the Supreme Court, Nassau County (Goodman, J.), entered December 5, 1983, which granted plaintiff’s motion to enteca default judgment against Dr. Cho, severed the action against Dr. Cho from the action pending against the other defendants, set the matter down for an inquest as to damages, and denied Dr. Cho’s [732] cross motion to compel plaintiff to accept his answer and demand for discovery, (2) as limited by his brief, from so much of an order of the same court, dated January 31,1984, as denied his motion, in effect, to renew his prior motion and cross motion, and to vacate plaintiff’s note of issue and statement of readiness, and (3) as limited by his brief, from so much of a further order of the same court, dated May 14, 1984, as denied his motion, in effect, to reargue the previous motions and cross motion. Appeal from the order dated May 14,1984 dismissed, without costs or disbursements. No appeal lies from an order denying a motion for reargument. Order dated January 31, 1984 reversed, insofar as appealed from, without costs or disbursements, appellant’s cross motion granted, plaintiff’s motion denied, plaintiff’s note of issue and statement of readiness vacated and order entered December 5, 1983 vacated on condition that appellant pay personally to plaintiff the sum of $3,500 within 20 days after service upon him of a copy of the order to be entered hereon, with notice of entry. If the condition is met, defendant Dr. Cho shall serve an answer simultaneously with his payment of $3,500. If the condition is not met, order affirmed, insofar as appealed from, without costs or disbursements. Appeal from the order entered December 5,1983, dismissed as academic, without costs or disbursements, if the aforementioned condition is met. If it is not, order affirmed, without costs or disbursements. Under the circumstances of this case, Special Term should have considered the affidavit of Dr. Cho submitted in support of the motion, in effect, to renew the prior motion and cross motion, particularly since the cross motion was prepared by counsel retained by an insurance company that has since disclaimed liability (see, Esa v New York Prop. Ins. Underwriting Assn., 89 AD2d 865; Siegel, NY Prac § 254, at 314). Since there has been no prejudice, the default will be vacated, although an appropriate sanction has been imposed. Lazer, J. P., Weinstein and Eiber, JJ., concur.