| Luppino v O'Brien |
| 2009 NY Slip Op 00839 [59 AD3d 991] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| James Luppino, as Successor Administrator of the Estate of MariaV. Luppino, Deceased, Respondent, v William E. O'Brien, M.D., et al., Defendants, and CatholicHealth System, Doing Business as Kenmore Mercy Hospital, Appellant. (Appeal No.1.) |
—[*1] Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered April19, 2007. The order, among other things, denied that part of the cross motion of defendantCatholic Health System, doing business as Kenmore Mercy Hospital, for a protective order.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, defendant Catholic Health System, doing business asKenmore Mercy Hospital (KMH), appeals from an order that, inter alia, granted that part ofplaintiff's motion to compel the production of four documents referenced in the contract betweenKMH and Elder Medical Services, P.C. (contract) and denied that part of KMH's cross motionfor an order of protection with respect to those documents. In appeal No. 2, KMH appeals froman order denying its motion for, inter alia, leave to renew that part of its cross motion and itsopposition to that part of plaintiff's motion with respect to the four documents referenced in thecontract. We conclude with respect to the order in appeal No. 1 that Supreme Court did notabuse its discretion by compelling KMH to produce the four documents referenced in thecontract. Those documents were within the scope of plaintiff's discovery requests and detailedthe policy and procedures concerning the treatment of patients at KMH, and thus they arerelevant to the allegations of medical malpractice in plaintiff's complaint (see Kern v City ofRochester, 261 AD2d 904, 905 [1999]).
We conclude with respect to the order in appeal No. 2 that the court properly denied that partof the motion for leave to renew. The affidavit of KMH's vice-president of compliance andadministrative services submitted in support thereof failed to present new facts and, in any event,KMH failed to establish a reasonable justification for its failure to present that affidavit insupport of its [*2]cross motion or in opposition to plaintiff'smotion (see Blazynski v A. Gareleck &Sons, Inc., 48 AD3d 1168, 1170 [2008], lv dismissed in part and denied in part11 NY3d 825 [2008]; Robinson vConsolidated Rail Corp., 8 AD3d 1080 [2004]). Present—Scudder, P.J., Hurlbutt,Peradotto and Gorski, JJ.