Ortiz v. Columbia Presbyterian Medical Center

Order, Supreme Court, New York County (Ira Gammerman, J.), entered on or about April 14, 1992, which deemed plaintiffs motion to direct the parties to proceed to jury selection *353and to permit her to amend her bill of particulars as one for reargument, granted said motion, and, upon reargument, adhered to its prior decision of December 4, 1991 denying plaintiff leave to amend her bill of particulars and dismissing the action upon the refusal of plaintiffs attorney to proceed without such amendment, unanimously modified, on the law and the facts and in the exercise of discretion, only to the extent of vacating the court’s dismissal and remanding the matter for trial and, as so modified, the order is otherwise affirmed, without costs.

Inasmuch as we have no record of the proceedings on December 4, 1991, we are unable to determine whether the court’s dismissal was warranted by counsel’s refusal to proceed absent the requested amendment; however, even though such amendment is unwarranted, the court should have limited itself at that time to disallowing it.

We have considered plaintiff-appellant’s other points and find them unpersuasive. Concur — Carro, J. P., Kupferman, Asch, Rubin and Nardelli, JJ.