| Myers v Community Gen. Hosp. of Sullivan County |
| 2008 NY Slip Op 04814 [51 AD3d 1359] |
| May 29, 2008 |
| Appellate Division, Third Department |
| Elizabeth Myers et al., Appellants, v Community GeneralHospital of Sullivan County et al., Defendants, and Robert Mueller,Respondent. |
—[*1] Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains (Christine A. Stea ofcounsel), for respondent.
Peters, J. Appeal from an order of the Supreme Court (Meddaugh, J.), entered February 28,2007 in Sullivan County, which granted a motion by defendant Robert Mueller to dismiss thecomplaint against him.
Plaintiff Elizabeth Myers was involved in an automobile accident in August 2000 and wastransported to defendant Community General Hospital of Sullivan County for treatment. Whilethere, Myers underwent a series of radiological examinations that were interpreted by defendantRobert Mueller (hereinafter defendant) as evidencing no sign of fracture or misalignment. Twomonths later, an MRI of Myers' spine apparently disclosed a compressed fracture at the L1 level.
Myers and her spouse, derivatively, thereafter commenced this medical malpractice actionagainst the hospital which, in turn, commenced a third-party action against defendant and [*2]defendant Samuel Okonta, the emergency room physician whotreated Myers upon her arrival.[FN*]Plaintiffs filed an amended complaint in June 2003 naming defendant, the hospital and Okonta asparty defendants and, shortly thereafter, defendant served his demand for a bill of particulars.Plaintiffs responded with an unverified bill of particulars.
As discovery progressed, the sufficiency of plaintiffs' bill of particulars became an issue and,by order dated October 5, 2005, Supreme Court directed, among other things, that plaintiffsprovide a supplemental bill of particulars "setting forth specific and particular allegations" of thenegligence and/or malpractice alleged with regard to defendant. That mandate was reiterated inan order dated October 20, 2005. Although plaintiffs served an unverified "supplemental" bill ofparticulars in December 2005, it essentially mirrored plaintiffs' original submission. As a result,defendant moved for an order of preclusion in January 2006 which Supreme Court conditionallygranted. Plaintiffs, who did not oppose the application, were given 30 days within which tocomply and were warned that "any further neglect of their obligation to comply . . .[would] result in the dismissal of this action." When no supplemental bill of particulars wasforthcoming, defendant brought the instant motion to dismiss pursuant to CPLR 3126. SupremeCourt granted the motion, and this appeal by plaintiffs ensued.
Where, as here, a party fails to comply with a discovery order, CPLR 3126 authorizes thecourt to fashion an appropriate remedy, the nature and degree of which is a matter committed tothe court's sound discretion (see Applerv Riverview Obstetrics & Gynecology, P.C., 9 AD3d 577, 578 [2004]; Cavanaugh v Russell Sage Coll., 4AD3d 660 [2004]). The penalty imposed will not be disturbed absent a clear abuse of thecourt's discretion (see Cavanaugh v Russell Sage Coll., 4 AD3d at 660; SaratogaHarness Racing v Roemer, 290 AD2d 928, 929 [2002])—even if the sanction isdismissal of the underlying complaint (see Manrique v New York-Presbyterian Hosp., 40 AD3d 270[2007]; Martel v Chupka, 26 AD3d474, 475 [2006]).
Based upon our review of the record as a whole, we cannot say that Supreme Court abusedits discretion in granting defendant's motion to dismiss. "The purpose of a bill of particulars is toamplify the pleadings, limit the proof and prevent surprise at trial" (Twiddy v Standard Mar.Transp. Servs., 162 AD2d 264, 265 [1990] [citation omitted]; see Graves v County ofAlbany, 278 AD2d 578 [2000]). To that end, a bill of particulars "must clearly detail thespecific acts of negligence attributed to each defendant" (Miccarelli v Fleiss, 219 AD2d469, 470 [1995]; see Neissel vRensselaer Polytechnic Inst., 30 AD3d 881, 881-882 [2006]; Hayes v Kearney,237 AD2d 769 [1997]), and the use of phrases such as "including but not limited to" or "amongother things," which plaintiffs employed, plainly are improper as they "destroy[ ] its mostessential functions" (Hayes v Kearney, 237 AD2d at 770 [internal quotation marks andcitation omitted]; see Neissel v Rensselaer Polytechnic Inst., 30 AD3d at 882). Here,despite being given three opportunities to cure what Supreme Court appropriately concluded wasa nonresponsive bill of particulars—particularly with respect to the injuries, subsequentsurgeries and loss of earnings allegedly suffered or incurred by Myers—and being warnedthat continued noncompliance would result in dismissal, plaintiffs nonetheless failed to providemore detailed responses to defendant's demand. Under these circumstances, plaintiffs' willfulnessmay be inferred and such conduct, in turn, warranted dismissal of the complaint as to defendant(see Martel v Chupka, 26 AD3d at 474-475; Hanlon v Rosenthal, 7 AD3d 758, 759 [2004]).[*3]
Cardona, P.J., Carpinello, Kane and Stein, JJ., concur.Ordered that the order is affirmed, with costs.
Footnote *: The action against Okonta hasbeen discontinued.