Redmond v Jamaica Hosp. Med. Ctr.

2009 NY Slip Op 04042 [62 AD3d 854]

May 19, 2009

Appellate Division, Second Department

As corrected through Wednesday, July 1, 2009

Angel Nicole Redmond, Appellant, v Jamaica HospitalMedical Center, Defendant, and Kenneth Fretwell et al.,Respondents.

—[*1]John T. Wisell, Kew Gardens, N.Y., for appellant.

Patrick F. Adams, PLLC, New York, N.Y. (Jeffrey S. Wolk of counsel), forrespondents.

In an action to recover damages for medical malpractice and wrongful death, the plaintiffappeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), enteredSeptember 16, 2008, which denied her motion to vacate an order of the same court dated April10, 2008, sua sponte, precluding her from conducting examinations before trial of the defendantsKenneth Fretwell and Jeffrey Chan pursuant to CPLR 3126.

Ordered that the order entered September 16, 2008 is reversed, on the law and in the exerciseof discretion, without costs or disbursements, and the motion to vacate the order dated April 10,2008, is granted.

The record does not demonstrate that the plaintiff's counsel willfully and contumaciouslyobstructed the progress of disclosure with respect to the examinations before trial of thedefendants Kenneth Fretwell and Jeffrey Chan (hereinafter the defendant doctors) (see Maceno v Franklin Hosp. Med.Ctr., 14 AD3d 663, 664 [2005]; Santigate v Linsalata, 304 AD2d 639, 641[2003]; Gorokhova v Belulovich, 267 AD2d 202, 203 [1999]). Accordingly, theSupreme Court improvidently exercised its discretion in, sua sponte, imposing the sanction ofpreclusion with respect to the examination before trial of the defendant doctors (seeCPLR 3126; cf. MahopacOphthalmology, P.C. v Tarasevich, 21 AD3d 351, 352 [2005]), and in denying theplaintiff's motion to vacate the order imposing that sanction. Dillon, J.P., Angiolillo, Dickersonand Eng, JJ., concur.