Abreu v. St. Luke's-Roosevelt Hospital Center

Order, [239] Supreme Court, Bronx County (Barry Salman, J.), entered August 30, 1996, which, inter alia, on plaintiffs motion, vacated, in the interests of justice, a prior order dated January 23, 1995, granting defendants’ motion and cross-motion for dismissal of plaintiffs complaint for failure to serve a proper supplemental bill of particulars unless plaintiff served further bills of particulars within 60 days thereof on the respective defendants, unanimously reversed, on the law, without costs, plaintiffs motion denied and defendants’ motion and cross-motion to dismiss the complaint granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint. The court improvidently exercised its discretion in granting plaintiffs motion to vacate the conditional order of dismissal and allowing plaintiff further opportunity to comply with its three prior discovery orders. Plaintiff commenced this medical malpractice action by service of a particularly vague complaint that did not specify the condition for which she was treated or any of defendants’ alleged specific acts or omissions. Over a four-year period of motion practice, she served a succession of bills of particulars wherein she repeatedly failed to provide the requested specificity as to certain issues or to differentiate the claims with respect to the three defendants. Consequently, her failure to submit an affidavit of merit with the motion to vacate warranted its denial and the granting of defendants’ motion and cross-motion (see, Becerril v Skate Way Roller Rink, 184 AD2d 365; Orabi v George Hildebrandt, Inc., 157 AD2d 506; Olivier v Rosal-Arcillas, 204 AD2d 701, lv dismissed 88 NY2d 1038). In light of the above, defendants’ remaining contentions need not be addressed. Concur — Wallach, J. P., Rubin, Williams, Tom and Andrias, JJ.