Lebowitz v. Columbia-Presbyterian Medical Center , 726 N.Y.S.2d 550 ( 2001 )

—Order, Supreme Court, New York County (Joan Lobis, J.), entered on or about September 22, 2000, which, in an action for medical malpractice, granted defendants’ motion to dismiss plaintiff husband’s cause of action for loss of services, and to preclude him and plaintiff wife from offering evidence at trial that the alleged malpractice has prevented the wife from providing services to the husband, only to the extent of conditionally dismissing the husband’s cause of action for loss of services if he did not appear for deposition, and order, same court and Justice, entered February 22, 2001, which granted the wife’s motion to vacate her default in opposing defendants’ motion for clarification of the September 22 order, and, upon vacatur, denied clarification, unanimously affirmed, without costs.

Plaintiff wife’s brief represents that her husband, who allegedly suffers from debilitating mental illness and whose cause of action for loss of services was dismissed after he failed to appear for deposition as directed in the September 22 order, will not be testifying at trial. Thus, so much of defendants’ motions as sought to dismiss the husband’s cause of action and to preclude him from testifying at trial is moot. Denial of the remainder of the relief sought by defendants was a proper exercise of discretion. Plaintiff herself is not in default, and, absent argument that particular items of damages she is claiming are not compensable as a matter of law, she should not be precluded from proving them. Whether defendants are entitled to any further relief is a decision to be made by the Justice presiding at trial. Concur — Rosenberger, J. P., Williams, Tom, Wallach and Friedman, JJ.