Vicatv.Jamaica Hospital

Appellate Division of the Supreme Court of New York, Second DepartmentApr 29, 1985
110 A.D.2d 896 (N.Y. App. Div. 1985)

April 29, 1985

Appeal from the Supreme Court, Queens County (Graci, J.).

Order dated June 14, 1983, reversed insofar as appealed from, and cross motion denied insofar as it relates to items Nos. 4 and 5 of respondent's demand for a bill of particulars.

Appellant is awarded one bill of costs.

Items Nos. 4 and 5 of the respondent's demand for a bill of particulars seeks information relating to the giving by plaintiff to respondent of any notice required in this matter. Plaintiff responded to this demand by pointing out, in effect, that it was not relevant or applicable to a medical malpractice action. We agree with plaintiff and find as a matter of law that plaintiff should not be required to give a further response to these items. We know of no notice requirement in a medical malpractice action as either a condition precedent or a prerequisite to maintaining such an action. Accordingly, it was error for Special Term to require an additional response to such a demand which appears to be a simple recapitulation of the applicable statute ( see, CPLR 3043 [a] [4], [5]). In such circumstances, a court is empowered to deny a request for a response to such a demand ( see, CPLR 3043 [c]). Titone, J.P., Lazer, Niehoff and Rubin, JJ., concur.