Opinion
Submitted May 7, 1999
June 21, 1999
In a medical malpractice action to recover damages for conscious pain and suffering and wrongful death, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated July 23, 1998, as denied that branch of her motion which was for partial summary judgment dismissing the second cause of action to recover damages for conscious pain and suffering.
Schiavetti, Geisler, Corgan, Soscia, DeVito, Gabriele and Nicholson, Garden City, N.Y. (Gary M. Sunshine and Lori A. Marano of counsel), for appellant.
Bernard D'Orazio, P.C., New York, N.Y., for respondent.
FRED T. SANTUCCI, J.P., DANIEL W. JOY, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court improvidently exercised its discretion in permitting the defendant to submit a motion for partial summary judgment more than one year after the note of issue was filed, and on the eve of trial, in view of the fact that the defendant did not demonstrate any good cause for the inordinate delay ( see, CPLR 3212[a]; Rich v. Ciano, 254 A.D.2d 268 [2d Dept., Oct. 5, 1998]; Anzalone v. Varis, 254 A.D.2d 381 [2d Dept., Oct. 19, 1998]; Krug v. Jones, 252 A.D.2d 572; Phoenix Garden Rest. v. Chu, 245 A.D.2d 164). In any event, we agree with the Supreme Court that there remain triable issues of fact with respect to whether the decedent experienced conscious pain and suffering prior to his death ( see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557; Singer v. Friedman, 220 A.D.2d 574).
The defendant's remaining contentions are without merit.