Sadik v. Maimonides Hospital

In a medical malpractice action to recover damages, inter alia, for wrongful death, the defendants Kroop, Senderoff and Thompson appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated April 10, 1987, as (1) vacated the plaintiff’s default in timely responding to their motion pursuant to CPLR 3126 to dismiss the complaint or, alternatively, compelling the plaintiff to produce certain documents for discovery, and (2) denied their cross motion to dismiss the complaint, on the condition that the plaintiff comply with certain outstanding discovery requests.

Ordered that the order is affirmed insofar as appealed from, with costs.

Given the circumstances of the plaintiff’s default, which occurred on November 18, 1985 when the plaintiff’s counsel appeared late for the Special Term, Part 8-A Motion Calendar call, the prompt motion to vacate the default made by order to show cause on November 27, 1985, only nine days after the default, and the lack of prejudice to the appellants, we find that the determination of Special Term to vacate the plaintiff’s default and deny the appellants’ cross motion to dismiss the complaint, upon the condition that the plaintiff comply with outstanding discovery demands, was hot an abuse of discretion (see, Battaglia v Hofmeister, 100 AD2d 833 ). Weinstein, J. P., Spatt, Sullivan and Harwood, JJ., concur.