| Allen v Calleja |
| 2008 NY Slip Op 08685 [56 AD3d 497] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Edward Allen, Appellant, v Georgio Calleja et al.,Respondents. |
—[*1] Farley & Glockner, LLP, Mineola, N.Y. (Mark Khavkin of counsel), for respondent GeorgioCalleja. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., and Patricia D'Alvia of counsel), for respondent St. John's Episcopal Hospital.
In an action, inter alia, to recover damages for wrongful death resulting from medicalmalpractice, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Queens County (O'Donoghue, J.), entered April 17, 2007, as granted thedefendants' separate cross motions to preclude him from adducing expert witness testimony attrial and, upon preclusion, directed the dismissal of the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and the defendants' separate cross motions are denied.
The plaintiff, as administrator of his late wife's estate, commenced the instant litigation inJuly 1999 against the defendants Georgio Calleja and St. John's Episcopal Hospital (hereinafterthe hospital), inter alia, to recover damages for his wife's wrongful death, resulting from allegedmedical malpractice. Contemporaneous with their answers, served in 1999, both defendantsrequested expert witness disclosure from the plaintiff, which the plaintiff never provided. Thepreliminary conference was not held until 2005, and during several conferences thereafter, the[*2]Supreme Court directed the plaintiff to provide outstandingdiscovery, with a final date for disclosure ultimately extended to February 5, 2007, and a trialdate scheduled for April 12, 2007. The plaintiff failed to disclose his expert witness information,asserting that before he could do so, his expert required additional information. In March 2007the plaintiff moved to strike the hospital's answer for failing to provide certain discovery andappear for a deposition. The hospital opposed the motion, and both it and Calleja separatelycross-moved to preclude the plaintiff from submitting expert witness testimony and, uponpreclusion, to dismiss the complaint.
The Supreme Court denied the plaintiff's motion, granted the defendants' separate crossmotions, and directed dismissal of the complaint. As limited by his brief, the plaintiff appealsonly from so much of the order as granted the defendants' separate cross motions. We reverse theorder insofar as appealed from.
To warrant preclusion, "the Supreme Court must determine that the offending party's lack ofcooperation with disclosure was willful, deliberate, and contumacious" (Assael v Metropolitan Tr. Auth., 4AD3d 443, 443 [2004] [internal quotation marks omitted]; see CPLR 3126 [2]; Moog v City of New York, 30 AD3d490 [2006]). Such conduct may be found where, for example, a party repeatedly fails tocomply with court orders directing it to produce certain discovery without adequate excusestherefor (see CPLR 3126; CDJCorp. v Commodore Mfg. Corp., 50 AD3d 1084 [2008]; Trataros Constr., Inc. v New York CitySchool Constr. Auth., 46 AD3d 872 [2007]; Reid v Schoenthal, 288 AD2d 203[2001]).
The defendants failed to establish that the plaintiff's failure to submit expert witnessinformation was willful or contumacious. The Supreme Court's initial deadline for the disclosureof expert witness information was originally set, during a February 2005 preliminary conference,for March 8, 2005, and in subsequent conferences, the plaintiff's deadline was extended toJanuary 15, 2007. Thereafter, during a conference on January 25, 2007 the court again extendedthe plaintiff's time to serve expert witness disclosure to February 5, 2007, and set a trial date ofApril 12, 2007. The plaintiff asserts that he did not meet the deadlines because he neededadditional information. Specifically, his expert requested that his decedent's "CT scan bereviewed by a board-certified radiologist to see if there was any evidence of small bowelobstruction or ischemia of the terminal ileum" and that the emergency room physicians andsurgeons who treated the decedent at the hospital between August 8, 1997 and August 10, 1997,be deposed "to get a better assessment of [decedent's] clinical course and treatment." In essence,the plaintiff contends that without such a review of the CT and the requested depositions, hecould not provide "the substance of the facts and opinions on which [his] expert is expected totestify" (CPLR 3101 [d] [1] [i]). Significantly, the hospital did not provide a list of the names ofits personnel who treated the decedent between August 8, 1997 and August 10, 1997 until March22, 2007, which was five months after the plaintiff requested such information and several weeksafter the plaintiff's deadline to disclose his expert witness information. Thus, the plaintiff couldnot have deposed a hospital witness before the discovery disclosure deadline of February 5, 2007.On this record, it cannot be said that the plaintiff's failure to disclose the expert witnessinformation was willful or contumacious. Rather, the facts demonstrate that the plaintiff requiredadditional information before he could make his expert witness disclosure pursuant to CPLR3101 (d) (see Vago v Kaylyakov, 36AD3d 687, 689 [2007]; Assael v Metropolitan Tr. Auth., 4 AD3d at 443-444; cf.Moog v City of New York, 30 AD3d at 491).
Calleja's remaining contention is without merit. Spolzino, J.P., Florio, McCarthy andDickerson, JJ., concur.