Caporale v. Mesbah

—In an action to recover damages for medical malpractice, defendants Michael C. Mesbah, Ira Kenneth Berliner, and Berliner & Mesbah OB/ GYN, P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Skelos, J.), dated September 11, 2001, as conditionally granted the plaintiffs motion, in effect, to vacate so much of a prior order of the same court (O’Connell, J.), dated August 12, 1999, as granted their motion to dismiss the complaint insofar as asserted against them for failure to comply with court-ordered discovery unless the plaintiff furnished such discovery to those defendants within 30 days thereof, and, in effect, denied their cross application to dismiss the complaint insofar as asserted against them for the plaintiffs failure to comply with court-ordered discovery, and the defendants Michael A. Ferragamo, Jr., Robert A. Edelman, and Urological Surgeons of L.I., P.C., separately appeal, as limited by their brief, from so much of the same order as conditionally granted that branch of the plaintiffs motion which was to vacate so much of the prior order dated August 12, 1999, as granted their motion to dismiss 351 the plaintiffs complaint insofar as asserted against them, and denied their cross motion to dismiss the complaint insofar as asserted against them for the plaintiffs failure to comply with court-ordered discovery. Ordered that the order is reversed, on the law, with one bill of costs to the respondents appearing separately and filing separate briefs, the motion is denied, the order dated August 12, 1999, is reinstated, the cross application and cross motion are granted, and the complaint is dismissed. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in conditionally granting the plaintiffs motion and reinstating the complaint (see Jenkinson v Naccarato, 286 AD2d 420 [2001]; Weitzenberg v Nassau County Dept. of Recreation & Parks, 282 AD2d 741 [2001]; Battaglia v Hofmeister, 100 AD2d 833 [1984]). Ritter, J.P., Friedmann, Luciano and H. Miller, JJ., concur.