| Cochran v Cayuga Med. Ctr. At Ithaca |
| 2011 NY Slip Op 08885 [90 AD3d 1227] |
| December 8, 2011 |
| Appellate Division, Third Department |
| Teresa J. Cochran, as Administrator of the Estate of SheilaCochran, Deceased, Respondent, v Cayuga Medical Center at Ithaca et al.,Appellants. |
—[*1] Walter J. Wiggins, Ithaca, for respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered January 18,2011 in Tompkins County, which, among other things, granted decedent's cross motion to vacatean order of preclusion and extend the time to respond to discovery.
Sheila Cochran (hereinafter decedent), who was in her early 20s and suffered from variousmental and physical infirmities, fell when attempting to get out of a wheelchair. The fall occurredafter she had been transported by a nurse, defendant Vicky Grinolds, to an exit upon beingdischarged from defendant Cayuga Medical Center at Ithaca. She subsequently brought thisaction and, when defendants' discovery demands went unanswered, defendants made a preclusionmotion. Supreme Court granted a 90-day conditional preclusion order in May 2010. Thefollowing month, decedent's counsel was permitted to withdraw. Counsel did not immediatelyrelease decedent's file to her since he apparently required payment of expenses prior to suchrelease and, this delay, together with problems finding and meeting with new counsel, resulted inthe expiration of the 90 days. Defendants moved for summary judgment in September 2010.Decedent's newly retained counsel cross-moved to vacate the order of preclusion and [*2]extend the time to respond to discovery. Supreme Court denieddefendants' motion and granted decedent's cross motion. Defendants appeal.[FN*]
"[I]t is well settled that a trial court has broad discretionary power in controlling discoveryand disclosure, and only a clear abuse of discretion will prompt appellate action" (Matter of Scaccia, 66 AD3d 1247,1249 [2009] [internal quotation marks and citations omitted]). A party seeking relief from adefault of a conditional preclusion order "must demonstrate (1) a reasonable excuse for thefailure to produce the requested items and (2) the existence of a meritorious claim or defense"(Gibbs v St. Barnabas Hosp., 16NY3d 74, 80 [2010]). Plaintiff set forth a reasonable excuse, which included decedent'sefforts to retain new counsel after prior counsel withdrew, the delays caused by financialobstacles in obtaining the file from prior counsel, difficulties encountered by her new counsel byreason of the breakup of his law partnership, and the efforts to promptly proceed explained by hernew counsel following his first meeting with decedent and plaintiff, which occurred shortly afterthe expiration of the 90-day time frame (see generally Imperato v Mount Sinai Med. Ctr., 82 AD3d 414, 415[2011]).
Defendants assert that decedent failed to show a meritorious claim because an affidavit wasnot submitted by an appropriate expert. While an affidavit from a medical expert is required toestablish merit when a default occurs in a medical malpractice action (see Gibbs v St.Barnabas Hosp., 16 NY3d at 80), the current action involving a fall by a patient while gettingout of a wheelchair operated by a nurse is more akin to a negligence action (see Bleiler vBodnar, 65 NY2d 65, 72 [1985] ["not every negligent act of a nurse would be medicalmalpractice, but a negligent act or omission by a nurse that constitutes medical treatment or bearsa substantial relationship to the rendition of medical treatment by a licensed physician constitutesmalpractice"]; Lipe v Albany Med.Ctr., 85 AD3d 1442, 1443 [2011]; D'Elia v Menorah Home & Hosp. for the Aged & Infirm, 51 AD3d848, 851-852 [2008]). Here, a report prepared by a nurse retained by plaintiff regardingimproper use of the wheelchair together with facts alleged in the record as to the manner inwhich the accident occurred were sufficient to show a potentially meritorious negligence claim.The accident allegedly occurred when a footplate on the wheelchair was not fully moved out ofthe way before decedent attempted to get out of the wheelchair. Upon review of the record, weare unpersuaded that Supreme Court abused its discretion in granting decedent's motion.
Mercure, A.P.J., Spain, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: Decedent died during thependency of this appeal and a motion to substitute plaintiff (decedent's mother) as legalrepresentative was granted.