| Gibbs v St. Barnabas Hosp. |
| 2009 NY Slip Op 03441 [61 AD3d 599] |
| April 30, 2009 |
| Appellate Division, First Department |
| Marvin Gibbs, Respondent, v St. Barnabas Hospital,Respondent, and Fausto Vinces, M.D., Appellant, et al., Defendants. |
—[*1] Napoli Bern Ripka, LLP, New York (Denise A. Rubin of counsel), for Marvin Gibbs,respondent. Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for St. BarnabasHospital, respondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 16, 2008, whichgranted the motion of defendant Vinces to enforce a conditional order of preclusion to the extentof directing plaintiff to pay $500 as costs for his delay in complying with discovery, affirmed,without costs.
The law strongly prefers that matters be decided on their merits (Catarine v Beth IsraelMed. Ctr., 290 AD2d 213, 215 [2002]). Accordingly, the drastic sanction of striking apleading is inappropriate without a clear showing that the failure to comply with disclosureobligations was willful, contumacious, or the result of bad faith (see Cespedes v Mike & JacTrucking Corp., 305 AD2d 222 [2003]).
The record reflects that defendant Vinces moved to compel plaintiff to provide a bill ofparticulars. This motion was withdrawn when plaintiff served a bill of particulars. Subsequently,Vinces apparently became dissatisfied with the bill of particulars plaintiff provided to him.Hence, at a preliminary conference held after service of the bill of particulars, plaintiff wasordered to provide a supplemental bill of particulars. Plaintiff does assert that he should haveinsisted that he not be required to serve a supplemental bill until after the completion ofdiscovery, since he was hard-pressed to further particularize his contentions at that point. In anyevent, when a supplemental bill was not furnished according to the schedule set forth in thepreliminary conference order, defendant moved again in that regard, which motion resulted inthe conditional order of preclusion under review.[*2]
While it is true that plaintiff did not timely comply withthe court-ordered deadlines, the delay was not lengthy, and defendant Vinces cannot claimprejudice because of the tardy supplemental bill of particulars that plaintiff ultimately furnished(see Marks v Vigo, 303 AD2d 306 [2003]). There is no evidence that plaintiff's inactionwas willful, contumacious, or the result of bad faith. As a result, striking the complaint as againstVinces would have been an overly drastic remedy for plaintiff's delay in complying withdiscovery (see Cooper v Shepherd, 280 AD2d 337 [2001]). That the Court of Appeals inWilson v Galicia Contr. & Restoration Corp. (10 NY3d 827 [2008]) upheld SupremeCourt's enforcement of an order of preclusion does not mean that Supreme Court's determinationin this case not to enforce such an order constituted such an abuse of discretion as to warrantreversal. Concur—Gonzalez, P.J., Tom, Friedman and Sweeny, JJ.
McGuire, J., dissents in a memorandum as follows: The order on appeal granting defendantVinces's motion to enforce a conditional order precluding plaintiff from offering certain evidenceat trial to the extent of imposing a $500 disclosure sanction against plaintiff should be modified,the conditional order, which became absolute, should be enforced and the complaint as againstVinces should be dismissed. Accordingly, I dissent.
On June 2, 2005, plaintiff commenced this medical malpractice and lack of informed consentaction against, among others, Vinces. On August 9, 2005, Vinces served plaintiff with hisanswer, disclosure demands and a demand for a bill of particulars. Plaintiff served bills ofparticulars as to two other defendants on October 14, 2005, but did not serve one as to Vinces.
By a letter dated January 24, 2006, Vinces's counsel reminded plaintiff that Vinces haddemanded a bill of particulars in August 2005, noted that no bill of particulars as to Vinces hadbeen served and stated that if no bill was served within 10 days Vinces would make a motion tocompel service of the bill. After no bill of particulars was served, Vinces's counsel sent a similarletter to plaintiff on March 21, 2006, again stating that a motion to compel would be made if nobill was served. Another letter to the same effect was sent on May 24, 2006 because plaintiff hadstill failed to serve his bill of particulars as to Vinces. In June 2006, Vinces moved to compelplaintiff to serve Vinces with a bill of particulars and comply with disclosure demands. Plaintifffinally served a bill of particulars on Vinces on August 21, 2006, and the parties stipulated thatVinces would withdraw his motion.
In the November 30, 2006 preliminary conference order, Supreme Court found the bill ofparticulars served on Vinces to be "unsatisfactory" and, without specifying a date by whichcompliance was necessary, directed plaintiff to serve a supplemental bill particularizing hisclaim that Vinces was vicariously liable for the negligence of the other defendants, the dates ofthe alleged malpractice and the specific allegations of negligence against Vinces.[FN1]As of January [*3]2007, plaintiff had not served the supplementalbill of particulars, and Vinces moved for disclosure sanctions under CPLR 3126, requesting thatthe complaint be dismissed. A February 21, 2007 order mooted the motion. In that order,Supreme Court directed plaintiff, within 45 days of the order, to provide Vinces with, amongother things, the supplemental bill of particulars required by the preliminary conference order.The order concluded by warning that "[plaintiff] will be precluded from offering any testimonyas to the above unless provided within 45 days." Thus, plaintiff had until April 9 to comply withthe February 21, 2007 order.[FN2]Vinces's counsel sent a letter to plaintiff on March 7, 2007 demanding compliance with theFebruary 21 order.
On May 21, 2007, Vinces moved to enforce the February 21, 2007 order, asserting thatplaintiff failed to serve a supplemental bill of particulars within 45 days of the order andconsequently that the conditional order had become absolute, precluding plaintiff from offeringany testimony as to the alleged malpractice of Vinces. Because plaintiff was so precluded,Vinces sought summary judgment dismissing the complaint as against him on the ground thatplaintiff could not make a prima facie case. Alternatively, Vinces sought dismissal of thecomplaint under CPLR 3126. Plaintiff opposed, arguing that his conduct was not willful andcontumacious and therefore the penalty of precluding him from offering testimony againstVinces was not warranted. Plaintiff also stressed that he served a supplemental bill of particularson Vinces on June 21, 2007, one day before he served his opposition to the motion andapproximately 75 days after the court-ordered deadline. Supreme Court granted Vinces's motionto the extent of directing plaintiff to pay Vinces $500 "as cost for [plaintiff's] delay in providingthe requested discovery."
The February 21, 2007 order was a conditional order of preclusion that became absolute onApril 9 upon plaintiff's failure to serve Vinces with a supplemental bill of particulars (see e.g.Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827 [2008]; Callaghan vCurtis, 48 AD3d 501 [2008]; Gilmore v Garvey, 31 AD3d 381 [2006]; see alsoState Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]). There is no dispute thatplaintiff failed to serve the [*4]supplemental bill of particularsbefore that deadline; plaintiff acknowledges that he did not serve it until June 21, approximately75 days after the deadline had passed.
Of course, plaintiff could not avoid the consequences of his failure to comply timely with theconditional order merely by serving the supplemental bill of particulars after the court-imposeddeadline (see Gilmore, supra; Stewart v City of New York, 266 AD2d452 [1999]). Rather, to be relieved of the consequences of his failure to comply timely with theconditional order, plaintiff was required to demonstrate both a reasonable excuse for his failureto comply with the order and a meritorious claim against Vinces (see e.g. Callaghan,supra; G.D. Van Wagenen Fin. Servs., Inc. v Sichel, 43 AD3d 1104 [2007];Gilmore, supra; VSP Assoc. v 46 Estates Corp., 243 AD2d 373 [1997];Michaud v City of New York, 242 AD2d 369 [1997]). Even assuming without decidingthat plaintiff's counsel's excuse of law office failure is reasonable (but see Okun vTanners, 11 NY3d 762 [2008], revg 47 AD3d 475 [2008]),[FN3]plaintiff failed to demonstrate that he has a meritorious claim against Vinces. Notably, plaintifffailed to submit the affirmation or affidavit of a medical expert suggesting that Vinces is liablefor plaintiff's injuries in this medical malpractice and lack of informed consent action (seee.g. Gilmore, supra; see also Kaufman v Bauer, 36 AD3d 481 [2007];Ramos v Lapommeray, 135 AD2d 439 [1987]; Canter v Mulnick, 93 AD2d 751,752 [1983], affd 60 NY2d 689 [1983]).
Because the conditional order became absolute and plaintiff failed to make the dual showingnecessary to be relieved of the consequences of that absolute order, plaintiff should be precludedfrom offering testimony at trial with respect to the issues he was obligated to address in thesupplemental bill of particulars, i.e., his claim that Vinces was vicariously liable for the [*5]negligence of the other defendants, the dates of the allegedmalpractice and the specific allegations of negligence against Vinces. Thus, plaintiff cannotestablish a prima facie case against Vinces and summary judgment in Vinces's favor dismissingthe complaint as against him is warranted (see e.g. Calder v Cofta, 49 AD3d 484 [2008];State Farm Mut. Auto Ins. Co., supra; Callaghan, supra; G.D.Van Wagenen Fin. Servs., Inc., supra; Gilmore, supra; Contarinov North Shore Univ. Hosp. at Glen Cove, 13 AD3d 571 [2004]). Giving full force and effectto the conditional (now absolute) order is consonant with the Court of Appeals' direction thatcourt-ordered deadlines are to be taken seriously by the parties and enforced by the courts(see Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & LandscapeArchitects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; Kihl v Pfeffer, 94NY2d 118, 123 [1999]).
The majority attempts to meet Vinces's argument that the conditional order had becomeabsolute with only an implicit and unsupportable assumption, even as it ignores the authoritiescited above supporting that argument. Thus, the majority states only as follows: "That the Courtof Appeals in Wilson upheld Supreme Court's enforcement of an order of preclusiondoes not mean that Supreme Court's determination in this case not to enforce such an orderconstituted such an abuse of discretion as to warrant reversal." As is evident, the majority simplyassumes the existence of the very discretion that could support its position.
In Wilson, the Court of Appeals held that, "As the conditional order wasself-executing and appellant's 'failure to produce [requested] items on or before the date certain'rendered it 'absolute' (see Zouev v City of New York, 32 AD3d 850, 850 [2d Dept 2006];Lopez v City of New York, 2 AD3d 693, 693 [2d Dept 2003]), the courts belowcorrectly held that defendant was precluded from introducing any evidence at the inquest'tending to defeat the plaintiff's cause of action' (Rokina Opt. Co. v Camera King, 63NY2d 728, 730 [1984]; see Weinstein-Korn-Miller, NY Civ Prac ¶ 3126.03 [aconditional order 'will preclude proof as to matters not furnished unless the delinquent partyprovides the particulars within the time frame specified in the order']). As a result, [defendant]was deemed to admit 'all traversable allegations in the complaint, including the basic allegationof liability (Curiale v Ardra Ins. Co., 88 NY2d 268, 279 [1996])" (10 NY3d at 830).
Nowhere in its opinion did the Court come close to suggesting the remarkable propositionthat either Supreme Court or the Appellate Division enjoys some undefined and broad discretionnot to follow the rule of law, i.e., not to enforce a conditional order of preclusion that hadbecome absolute even when the requisite dual showing of a reasonable excuse for the party'sfailure to comply with the order and a meritorious claim has not been met. To the contrary, in thefirst of the cases cited by the Court of Appeals in Wilson, a conditional order ofpreclusion had become absolute and the Second Department stated as follows: "To be relieved ofthe adverse impact of the order striking its answer, the defendant was required todemonstrate a reasonable excuse for its failure to produce the requested items and the existenceof a meritorious defense" (Zouev, 32 AD3d at 850 [emphasis added]). Moreover, asnoted, the majority just ignores the plethora of Appellate Division authority supporting Vinces'sargument (see e.g. Callaghan, supra; Gilmore, supra; see alsoState Farm Mut. Auto Ins. Co., supra). Albeit with regret, for these reasons Irespectfully submit that the majority's position is indefensible.
Even if the conditional order had not become absolute (and plaintiff was not precluded fromoffering testimony at trial with respect to the issues he was obligated to address in the [*6]supplemental bill of particulars), I would not agree that the "costs"imposed by Supreme Court—a $500 penalty—were appropriate. That disclosuresanction amounts to nothing more than the gentlest of slaps on the wrist and is not remotelycommensurate with the serious, chronic and inexcusable nature of plaintiff's counsel's failures tocomply with the court's directives (see Weissman v 20 E. 9th St. Corp., 48 AD3d 242,243 [2008]; Christian v City of New York, 269 AD2d 135, 137 [2000]). Plaintiff failedto comply with both the preliminary conference order requiring him to serve a supplemental billof particulars and the February 21, 2007 conditional order of preclusion. Moreover, Vinces hadto incur the costs of having his counsel send three letters to plaintiff and make a motion tocompel just to get an initial bill of particulars from plaintiff—which Supreme Courtdetermined for good and sufficient reasons was "unsatisfactory." And when plaintiff inexcusablyfailed to comply with the February 21, 2007 order, Vinces had to incur the costs of yet anothermotion. Albeit it once again with regret, I respectfully submit that the majority's affirmance ofthis trivial disclosure sanction is indefensible and, to say the least, does nothing to encourage theconduct that is of critical importance to the fair, expeditious and efficient resolution of civillitigation: compliance with court-ordered deadlines (see Miceli v State Farm Mut. Auto. Ins.Co., 3 NY3d 725 [2004]; Kihl, supra). To all the attorneys and the trialcourts committed to these imperatives, the majority's affirmance will be dismaying (seegenerally Figdor v City of New York, 33 AD3d 560, 561 [2006] ["We take this opportunityto encourage the IAS courts to employ a more proactive approach in such circumstances; uponlearning that a party has repeatedly failed to comply with discovery orders, they have anaffirmative obligation to take such additional steps as are necessary to ensure futurecompliance"]).
Accordingly, I would modify the order appealed to enforce the conditional order, precludeplaintiff from offering testimony at trial with respect to the issues he was obligated to address inthe supplemental bill of particulars and grant summary judgment to Vinces dismissing thecomplaint as against him.
Footnote 1: The majority writes that"[p]laintiff does assert that he should have insisted that he not be required to serve asupplemental bill until after the completion of discovery, since he was hard-pressed to furtherparticularize his contentions at that point." Why the majority recites this assertion is unclear,particularly because the majority does not state whether it agrees with the assertion. In any event,no sympathy is due to plaintiff on this account for his assertion is patently irrelevant. SupremeCourt found that the original bill of particulars was "unsatisfactory" and directed plaintiff toserve a supplemental bill particularizing his claim that Vinces was vicariously liable for thenegligence of the other defendants, the dates of the alleged malpractice and the specificallegations of negligence against Vinces. If plaintiff disagreed with that directive, he should havemoved to vacate the preliminary conference order. Obviously, Supreme Court—notplaintiff—is the arbiter of the sufficiency of the bill of particulars, and plaintiff wasrequired to comply with the court's unequivocal order. Apart from the irrelevance of thisassertion, the implicit effort to blame the court for plaintiff's failure to comply is as revealing asit is troubling.
Footnote 2: The forty-fifth day afterFebruary 21, 2007 was April 7. Because April 7 was a Saturday, plaintiff's deadline to complywith the order was Monday April 9 (see General Construction Law § 25-a).
Footnote 3: The majority makes no attemptat all to defend plaintiff's excuse as reasonable. The majority's tacit conclusion that it is notreasonable is understandable. Plaintiff's counsel asserted only that she failed to comply with theconditional order in a timely fashion because: "I did not attend Court for the Motion on February21, 2007 when [the conditional order] was entered . . . The attorney who did attend. . . is no longer with this firm. Routinely, the attorney who appears gives me acopy of a Stipulation [or order] to enter dates and deadlines on my personal calendar. I did nothave the date on which the Supplemental Bill of Particulars, in this case, was due on mycalendar. I do not remember being given a copy of the [order]. I have, however, served aSupplemental Bill of Particulars on this date [i.e., June 21, 2007]. This was an inadvertent lawoffice failure." This "excuse" explains nothing. Why counsel did not have the date on hercalendar is unexplained, as is the relevance of the fact that the attorney who was in court had leftthe firm. Notably, counsel does not deny receiving a copy of the order, but merely asserts thatshe did not remember receiving a copy. Moreover, the statement that the attorney who actuallyappears in court "[r]outinely" provides counsel with a copy of the order makes thenoncompliance more not less puzzling.