Upon the following papers numbered 1 to 5 read on this motion to strike bill of particulars among other things; Notice of Motion/Order to Show Cause and supporting papers 1-2; Notice of Cross Motion and supporting papers; Opposing papers: 3-4; Reply papers 5; Other; it is, ORDERED that this motion (#002) by defendant, Christos Angelopoulos, DDS, pursuant to CPLR §3024 to strike the claim in plaintiff’s Bills of Particulars as to defendant, Christos Angelopoulos, DDS, as frivolous and of no merit, is granted in its entirety; and it is furtherORDERED that the challenged provisions of the Bills of Particulars are stricken therefrom; and it is furtherORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR §202.5-b(h)(2); and it is furtherORDERED that counsel are directed to appear at the conference presently scheduled for May 20, 2019, at 9:30 am, in Part 33, at the courthouse located at 1 Court Street — Annex, Riverhead, New York. There will be no adjournments and failure to appear may result in sanctions.The challenged claims in the Bills of Particulars are directed against defendant, Christos Angelopoulos, DDS, who has read, interpreted and provided a report to co-defendants as to a 3-D Galileo/CBCT scan of the plaintiff, as it pertained to the placement of an implant at site #30. The plaintiff was never seen, treated, nor a patient of this defendant, who received no clinical information of the plaintiff. The claims that are sought to be stricken seek to hold this defendant responsible not for his interpretation of the scan, but for failing to provide appropriate medical care for the conditions of the plaintiff set forth in his report. In essence, plaintiff seeks to hold this defendant negligent as if he was a clinician and not as a radiologist. The report did note that the defendant saw “bilateral calcifications in the intracranial course of the right and left internal carotid arteries due to atheromatosis.” Nearly a year thereafter, plaintiff suffered a stroke.Plaintiff criticizes this defendant for doing “absolutely nothing to protect the patient” (par. 4, Fallarino, Esq., aff. in opposition) and for illogically claiming that he “has no obligation to the patient” (id). It is plaintiff’s belief that “[i]t is not simply ok to review a study, find a very important and medically crucial finding for a patient and then merely place it in a written report without confirming whether anything was done with that report or whether the patient’s finding was addressed” (id. at par.10 p.).In light of the fact that plaintiff propounds this belief without even a single citation to a case or a law review article, this Court feels compelled to respond in kind as to these claimed deviations from the standard of care of this oral maxillofacial radiologist.In any event, this Court will follow the dictates of the Hon. Benjamin N. Cardoza, LL.D., as set forth in his remarkable book, The Nature of the Judicial Process (Yale University Press, First Published December, 1921, Seventh Printing, March, 1931), wherein he noted:“Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to work injustice, it will eventually be reformulated” (citation omitted).Or as he more fully explored in The Growth of the Law, (copyright 1924, Twelfth Printing, June, 1963, pp. 136-7):A rule which in its origin was the creation of the courts themselves, and was supposed in the making to express the mores of the day, may be abrogated by courts when the mores have so changed that perpetuation of the rule would do violence to the social conscience.Here, the social conscience will not be disturbed by the granting of this motion to strike the claimed deviations sought by the plaintiff.Therefore, defendant’s motion (#002) is granted.
