Opinion
2013-10-24
WESTCHESTER MEDICAL CENTER, Plaintiff–Respondent, v. James AMOROSO, Defendant–Appellant.
Ian Anderson, Kew Gardens, for appellant. The Stuttman Law Group, P.C., White Plains (Dennis D. Murphy of counsel), for respondent.
Ian Anderson, Kew Gardens, for appellant. The Stuttman Law Group, P.C., White Plains (Dennis D. Murphy of counsel), for respondent.
SWEENY, J.P., RENWICK, FEINMAN, CLARK, JJ.
Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered August 29, 2012, which, to the extent appealed from, denied defendant's motion for an order of preclusion and summary judgment dismissing the complaint, unanimously affirmed, without costs.
In this action seeking payment for medical services provided by plaintiff hospital, defendant's preclusion motion was properly adjudicated ( see Rule 202.8[f] of the Uniform Rules of the New York State Trial Courts). Contrary to defendant's argument, there is no evidence that the proper procedure for resolving the pre-preliminary conference discovery motion was not followed or that the motion court was not thoroughly familiar with the content of the filed motion prior to signing the order challenged on appeal. Although defendant alleges that plaintiff failed to respond to a demand for a bill of particulars over a 2 1/2 year period of time, no preliminary conference order existed and no further demands or motions seeking plaintiff's compliance with the lone discovery request were brought or made. Additionally, no conditional orders pertaining to discovery compliance were sought by defendant. Thus, defendant failed to establish a pattern of willful non-compliance with discovery and the drastic penalty of an order of preclusion is not warranted ( see Cherokee Owners Corp. v. DNA Contr., LLC, 74 A.D.3d 411, 903 N.Y.S.2d 9 [1st Dept.2010]; Ripka Rotter & King, LLP v. Kahn Gordon Timko & Rodriguez, P.C., 83 A.D.3d 613, 921 N.Y.S.2d 848 [1st Dept.2011]; Palmenta v. Columbia Univ., 266 A.D.2d 90, 698 N.Y.S.2d 657 [1st Dept.1999] ).
Defendant's argument that plaintiff's name, as it appears in the caption, is a misnomer and that due to the error plaintiff lacks the capacity to bring this action in New York State courts was improperly raised in reply and we decline to reach it ( see Matter of Landmark West! v. Burden, 15 A.D.3d 308, 790 N.Y.S.2d 107 [1st Dept.2005], lv. denied5 N.Y.3d 713, 806 N.Y.S.2d 163, 840 N.E.2d 132 [2005];Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624, 630 N.Y.S.2d 1003 [1st Dept.1995] ), except to, sua sponte, allow plaintiff to amend the caption. We note that the named plaintiff is a commonly used “dba” and that there is no prejudice to defendant ( see generally Suarez v. Shorehaven Homeowners Assn., 202 A.D.2d 229, 608 N.Y.S.2d 457 [1st Dept.1994]; Air Tite Mfg. v. Acropolis Assoc., 202 A.D.2d 1067, 612 N.Y.S.2d 706 [4th Dept.1994] ).