Batson v. LaGuardia Hospital

In an action to recover damages for medical malpractice and wrongful death, the defendants Eric S. Lichtenstein, Ronald F. Teichman, Kenneth J. Higgins, and LaGuardia Medical Group appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated March 29, 1994, which denied their motion for an order of preclusion on the ground that it was not timely made pursuant to CPLR former 3042 (d). 263 Ordered that the order is affirmed, with costs. CPLR former 3042 (d), which is applicable to this case, provided that where a bill of particulars is regarded as defective, in the absence of special circumstances, a motion for preclusion or for service of a further bill must be made within 10 days after the receipt of the defective bill (see, Anzalone v Preferred Mut. Ins. Co., 121 AD2d 491). At bar, the appellants waited four months before bringing their motion, inter alia, for an order of preclusion and failed to assert the existence of any special circumstances in their supporting papers. Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.