Order: Anne M Gibson v. New York Eye And Ear Infirmary Of Mount Sinai, Meenakashi Gupta Md, New York Eye And Ear Infirmary Ipa, Inc.

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                                FILED: NEW YORK COUNTY CLERK 01/12/2023 03:40 PM                                                                    INDEX NO. 805288/2017
NYSCEF DOC. NO. 188                                                                                           RECEIVED NYSCEF: 01/11/2023



                                 SUPREME COURT OF THE STATE OF NEW YORK
                                           NEW YORK COUNTY
          PRESENT:             HON. LAURENCE L. LOVE                                            PART                              63M
                                                                                    Justice
          ---------------------------------------------------------------------------------X    INDEX NO.          805288/2017
           ANNE M GIBSON,
                                                                                                MOTION DATE         10/12/2022
                                                       Plaintiff,
                                                                                                MOTION SEQ. NO.         006
                                               -v-
           NEW YORK EYE AND EAR INFIRMARY OF MOUNT
           SINAI, MEENAKASHI GUPTA, NEW YORK EYE AND EAR                                          DECISION + ORDER ON
           INFIRMARY IPA, INC.,                                                                         MOTION

                                                       Defendant.
          ---------------------------------------------------------------------------------X

          The following e-filed documents, listed by NYSCEF document number (Motion 006) 164, 165, 166, 167,
          168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 180, 181
          were read on this motion to/for                                                      ATTORNEY - FEES                    .

          Upon the foregoing documents, defendant’s motion seeking an order pursuant to CPLR 4402 and

          8301 granting costs and disbursements to defendants is resolved as follows:

                    Pursuant to CPLR R. 4402, “At any time during the trial, the court, on motion of any party,

          may order a continuance or a new trial in the interest of justice on such terms as may be just.”

          CPLR 8301 sets forth the taxable disbursements that a party awarded costs is entitled to.

                    A trial of this matter was scheduled before this Court on February 17, 2022. After selecting

          a jury, the trial was scheduled to commence on February 21, however the trial was rescheduled as

          plaintiff was admitted to the hospital on February 20. Based upon same, the trial was adjourned

          until March 17, 2022 and this Court issued an order denying defendant’s motion for costs. The

          trial was thereafter scheduled to begin on May 2, 2022. Said trial date was again cancelled due to

          plaintiff’s health, resulting in the instant motion.

                    In preparing for the trial, defendants submit that they have expended thousands of dollars

          on preparation costs, including but not limited to the production of five expert witnesses, a neuro-

           805288/2017 GIBSON, ANNE M vs. NEW YORK EYE AND EAR                                                      Page 1 of 2
           Motion No. 006



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FILED: NEW YORK COUNTY CLERK 01/12/2023 03:40 PM                                                     INDEX NO. 805288/2017
NYSCEF DOC. NO. 188                                                                            RECEIVED NYSCEF: 01/11/2023




          ophthalmologist, a vitreoretinal surgeon, and a glaucoma specialist and plaintiff’s treating

          physicians.

                  In support of its position, defendant cites Crevecour v. Mattam, 172 A.D.3d 813 (2nd Dept.

          2019) and Quercia v. Silver Lake Nursing Home, Inc., 176 A.D.3d 1244 (2nd Dept. 2019) for the

          proposition that the Court has broad discretion to set the conditions of the granting of a trial

          adjournment. Both of defendant’s cited cases concern examples of attorney unpreparedness worthy

          of the awarding of costs. However, here the issue is plaintiff’s medical emergency and the granting

          of costs would clearly not serve the interests of justice.

                  ORDERED that the instant motion is DENIED in its entirety.




                   1/9/2023                                                             $SIG$
                    DATE                                                         LAURENCE L. LOVE, J.S.C.
           CHECK ONE:                  CASE DISPOSED                   X   NON-FINAL DISPOSITION

                                       GRANTED          X    DENIED        GRANTED IN PART             OTHER

           APPLICATION:                SETTLE ORDER                        SUBMIT ORDER

           CHECK IF APPROPRIATE:       INCLUDES TRANSFER/REASSIGN          FIDUCIARY APPOINTMENT       REFERENCE




           805288/2017 GIBSON, ANNE M vs. NEW YORK EYE AND EAR                                       Page 2 of 2
           Motion No. 006



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