| Masik v Lutheran Med. Ctr. |
| 2012 NY Slip Op 01218 [92 AD3d 732] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Mihail Masik, Appellant, v Lutheran Medical Center,Defendant, and Nawaiz Ahmad, Respondent. |
—[*1] McAloon & Friedman, P.C., New York, N.Y. (Gina DiFolco of counsel), forrespondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from so muchof an order of the Supreme Court, Kings County (Dabiri, J.), dated June 4, 2010, as denied thatbranch of his motion which was pursuant to CPLR 3126 (3) to strike the answer of the defendantNawaiz Ahmad, and granted those branches of the cross motion of the defendant Nawaiz Ahmadwhich were to compel him to serve a supplemental bill of particulars and, in effect, to direct himto obtain a copy of his medical records from Ukraine and provide the same to the other parties.
Ordered that the appeal from so much of the order as granted those branches of the crossmotion of the defendant Nawaiz Ahmad which were to compel the plaintiff to serve asupplemental bill of particulars and, in effect, to direct the plaintiff to obtain a copy of hismedical records from Ukraine and provide the same to the other parties are dismissed asacademic in light of our determination in Masik v Lutheran Med. Ctr. (92 AD3d 733[2012] [decided herewith]); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant Naiwaz Ahmad.
Despite the failure of the defendant Nawaiz Ahmad to appear for a court-ordered deposition,the Supreme Court providently exercised its discretion in declining to impose the drastic remedyof striking his answer (see CPLR 3126 [3]; Deans v Jamaica Hosp. Med. Ctr., 64 AD3d 744 [2009]; see also Pirro Group, LLC v One Point St.,Inc., 71 AD3d 654 [2010]; Novick v DeRosa, 51 AD3d 885 [2008]). Skelos, J.P., Leventhal,Lott and Miller, JJ., concur.
Motion by the defendant Nawaiz Ahmad to dismiss an appeal from an order dated June 4,2010, on the ground that it has been rendered academic.
Upon the papers filed in support of the motion, upon the papers filed in opposition thereto,and upon the submission of the appeal; it is
Ordered that those branches of the motion which are to dismiss the appeal from so much ofthe order as granted those branches of the cross motion of the defendant Nawaiz Ahmad whichwere to compel the plaintiff to serve a supplemental bill of particulars and, in effect, to direct theplaintiff to obtain a copy of his medical records from Ukraine and provide the same to the otherparties are denied as academic in light of our determination of the appeal (see Masik vLutheran Med. Ctr., 92 AD3d 733 [2012] [decided herewith]), and the motion is otherwisedenied. Skelos, J.P., Leventhal, Lott and Miller, JJ., concur.