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Murray v. Brookhaven Memorial Hospital Medical Center

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


May 11, 2010

DARELL MURRAY, APPELLANT,
v.
BROOKHAVEN MEMORIAL HOSPITAL MEDICAL CENTER, ET AL., RESPONDENTS.

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated January 6, 2009, as denied the plaintiff's motion, in effect, to vacate so much of a "preliminary conference stipulation and order" of the same court dated July 31, 2008, as, in effect, over the plaintiff's objection, granted the defendants' oral application to strike the word "reckless" from the plaintiff's verified bill of particulars.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., FRED T. SANTUCCI, ANITA R. FLORIO & L. PRISCILLA HALL, JJ.

(Index No. 4764/08)

DECISION & ORDER

ORDERED that the order dated January 6, 2009, is reversed insofar as appealed from, on the law, with one bill of costs, and the plaintiff's motion, in effect, to vacate so much of the "preliminary conference stipulation and order" dated July 31, 2008, as, in effect, over the plaintiff's objection, granted the defendants' oral application to strike the word "reckless" from the plaintiff's verified bill of particulars, is granted.

Under the circumstances of this case, the Supreme Court improperly, in effect, granted the defendants' oral application to strike the term "reckless" from the plaintiff's verified bill of particulars. Inasmuch as the determination of this particular application necessarily involved a consideration of evidentiary sufficiency, a formal motion on notice to the plaintiff should have been made (see CPLR 2214; see also Williams v Naylor, 64 AD3d 588, 589; Padro v Boulevard Hosp., 92 AD2d 888; see generally CPLR 1602; CPLR 3212). Accordingly, the Supreme Court erred in denying the plaintiff's motion, in effect, to vacate so much of the "preliminary conference stipulation and order" dated July 31, 2008, as, in effect, granted the defendants' oral application.

In light of our determination, it is unnecessary to reach the plaintiff's remaining contentions.

DILLON, J.P., SANTUCCI, FLORIO and HALL, JJ., concur.

20100511

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