        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1240
CA 14-00275
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


JERRY SWENEY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF NIAGARA, AND NIAGARA COUNTY
JAIL, DEFENDANTS-APPELLANTS.
---------------------------------------
COUNTY OF NIAGARA, THIRD-PARTY
PLAINTIFF-RESPONDENT,

                    V

INTER-COMMUNITY MEMORIAL HOSPITAL OF
NEWFANE, INC., AND EASTERN NIAGARA
HOSPITAL, INC., THIRD-PARTY
DEFENDANTS-APPELLANTS.


CONNORS & VILARDO, LLP, BUFFALO (PATRICK D. MCNALLY OF COUNSEL), FOR
THIRD-PARTY DEFENDANTS-APPELLANTS.

MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANTS-APPELLANTS AND THIRD-PARTY
PLAINTIFF-RESPONDENT.

FRANZBLAU DRATCH, P.C., NEW YORK CITY (BRIAN M. DRATCH OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Niagara County (Ralph
A. Boniello, III, J.), entered December 6, 2013. The order denied the
motion of third-party defendants for summary judgment and denied the
cross motion of defendants for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion and cross
motion are granted, and the complaint and third-party complaint are
dismissed.

     Memorandum: In this medical malpractice action, plaintiff, an
inmate in state prison, seeks damages for the allegedly negligent
treatment of a foot injury he sustained while playing volleyball in
the Niagara County Jail. The defendants named in the complaint were
County of Niagara and the Niagara County Jail (collectively, County),
along with plaintiff’s treating physician, Dr. Robert M. Bauer. On
April 7, 2010, plaintiff filed a note of issue, which Dr. Bauer moved
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                                                         CA 14-00275

to strike on the ground that plaintiff had not fully complied with his
discovery demands. On May 10, 2010, Supreme Court issued an order
stating that, “if such discovery is not obtained within sixty (60)
days by the parties, the Note of Issue shall be stricken as of July
12, 2010.” It is undisputed that plaintiff failed to comply with the
discovery requests by the court-imposed deadline, and that a new note
of issue was never filed.

     In December 2011, Dr. Bauer moved for summary judgment dismissing
the complaint against him. In support of the motion, Dr. Bauer
asserted, inter alia, that the motion was timely because the note of
issue had been stricken. Plaintiff did not oppose the motion, which
the court granted. The County thereafter commenced a third-party
action against third-party defendants Inter-Community Memorial
Hospital of Newfane, Inc., and Eastern Niagara Hospital, Inc.
(collectively, Hospital), which had a contract with the County to
provide medical services to inmates at the jail. In November 2013,
the Hospital moved for summary judgment dismissing the third-party
complaint, and the County filed a cross motion for summary judgment
dismissing the complaint. The County did not oppose the Hospital’s
motion. Although plaintiff submitted no evidence in opposition to the
County’s cross motion, he contended that it was untimely because it
was not brought within 120 days of the filing of the note of issue
(see CPLR 3212 [a]). In response, the County argued that the 120-day
deadline set forth in CPLR 3212 (a) did not apply because the note of
issue filed by plaintiff had been stricken by the court’s conditional
order of May 10, 2010. The court, without explanation, denied both
the motion and cross motion. We now reverse.

     We agree with the Hospital and the County that their respective
motion and cross motion were timely. A conditional, self-executing
order, which requires discovery to be complied with by a specific
date, becomes absolute on the specified date if the condition has not
been met (see Wilson v Galacia Contr. & Restoration Corp., 10 NY3d
827, 830). To obtain relief from such a conditional order, the
defaulting party must demonstrate “(1) a reasonable excuse for the
failure to produce the requested items and (2) the existence of a
meritorious claim or defense” (Gibbs v St. Barnabas Hosp., 16 NY3d 74,
80; see Gradaille v City of New York, 52 AD3d 279, 282-283). If the
defaulting party fails to proffer a reasonable excuse and a
meritorious claim or defense, the court lacks discretion to disregard
the self-executing order once it has become absolute (Gibbs, 16 NY3d
at 80-81).

     Here, as noted, the court’s self-executing order of May 10, 2010
provided that the note of issue would be stricken as of July 12, 2010
if plaintiff failed to provide the requested discovery materials
within 60 days. Because plaintiff undisputedly failed to provide the
requested discovery materials within that time period, the note of
issue was stricken as of July 12, 2010. Where, as here, a note of
issue is struck by court order, it cannot commence the running of the
time limit set forth in CPLR 3212 (a) (see Williams v Peralta, 37 AD3d
712, 713). Thus, contrary to plaintiff’s contention, the Hospital’s
motion and the County’s cross motion were not untimely.
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                                                         CA 14-00275

     We further conclude that the County met its initial burden of
establishing entitlement to judgment as a matter of law (see generally
Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853), thus
shifting the burden to plaintiff to raise a triable issue of fact (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Having
submitted no evidence in opposition to the County’s cross motion,
plaintiff failed to meet that burden. It thus follows that the court
erred in denying the cross motion. Although the County improperly
designated its application for summary judgment a “cross motion,”
plaintiff did not challenge the application on that ground in Supreme
Court. In any event, we conclude that “a technical defect of [that]
nature may be disregarded where, as here, there is no prejudice, and
the opposing parties had ample opportunity to be heard on the merits
of the relief sought” (Daramboukas v Samlidis, 84 AD3d 719, 721; see
CPLR 2001; see generally New Yorkers for Constitutional Freedoms v New
York State Senate, 98 AD3d 285, 288, lv denied 19 NY3d 814). Finally,
as the County concedes, there was no basis for the court to deny the
Hospital’s unopposed motion.




Entered:   November 21, 2014                   Frances E. Cafarell
                                               Clerk of the Court
