The Court of Appeals recently addressed the enforcement of conditional orders of preclusion for failure to timely provide an adequate bill of particulars or other discovery, and the showing required to obtain relief from such an order, including the specific showing needed in medical malpractice actions. While the Court required strict adherence to the requirements for relief from a conditional order, in another case it was more flexible in applying the requirement of giving notice to a municipality in order to hold it liable. This month we discuss the decisions in those cases, as well as the Court’s application of the assumption of the risk doctrine to the game of golf.
Conditional Orders
In one of its last decisions of 2010, Gibbs v. St. Barnabas Hospital, the Court explained that a 25-year-old precedent is to be strictly enforced. The Court had established in Fiore v. Galang, 64 NY2d 999 (1985), aff’g 105 AD2d 970 (3d Dept. 1984), that a party may only be granted relief from a conditional order of preclusion if he demonstrates both a reasonable excuse for failure to provide requested discovery and the existence of a meritorious claim or defense. Those requirements remain in full force today, making it an error of law to relieve a party from a conditional order of preclusion absent such a demonstration. Further, as it did in Fiore, the Court held in Gibbs that if the action is for medical malpractice, in order to establish that he has a meritorious claim, a plaintiff must submit “expert medical opinion evidence.”
