| Congleton v United Health Servs. Hosps. |
| 2009 NY Slip Op 08107 [67 AD3d 1148] |
| November 12, 2009 |
| Appellate Division, Third Department |
| Barbara Congleton, as Administrator of the Estate of William G.Congleton, Deceased, Appellant, v United Health Services Hospitals, Doing Business as WilsonMemorial Regional Medical Center, et al., Respondents, et al.,Defendants. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (Lauren A. Kiley of counsel), for UnitedHealth Services Hospitals and another, respondents. Aswad & Ingraham, Binghamton (Thomas Saitta of counsel), for Teresa Ann Sacco Bedoskyand another, respondents. Davidson & O'Mara, P.C., Elmira (Ransom P. Reynolds, Jr. of counsel), for Daniel Young,respondent.
Spain, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered August 1, 2008in Broome County, which granted certain defendants' motions to dismiss the complaint againstthem.[*2]
Plaintiff, decedent's wife, commenced this negligenceaction in May 2007 as administrator of decedent's estate, alleging medical malpractice, lack ofinformed consent and wrongful death against, as relevant here, defendants United HealthServices Hospital, Teresa Ann Sacco Bedosky, Michael R. Stone, Daniel Young and AprilCarlin. Decedent had been treated in the emergency room at Wilson Memorial Regional MedicalCenter on May 13, 2005 by the individual defendants, and he underwent medical tests whichreportedly revealed no cardiac problem; he was discharged the next day. He was found deceasedfour days later, and the autopsy concluded that his death was "[s]udden [and] unexpected," and"consistent with lethal cardiac arrhythmia"—an irregular heartbeat—and that he hadidiopathic cardiomyopathy, or disease of the heart muscle. Issue was joined,[FN*]in part, and Stone, Young and Bedosky served demands for a bill of particulars (seeCPLR 3042), disclosure (see CPLR 3101) and for authorizations for release of decedent'smedical records (see CPLR 3120).
As a result of plaintiff's failure to respond to these discovery demands, certain defendantsreportedly moved for a conditional order, pursuant to CPLR 3126 (3) and 3042, dismissing theaction unless plaintiff responded to their demands by a date certain. While that motion waspending, plaintiff served a bill of particulars that was not verified and one medical authorizationfor release of United Health's own records. Counsel for certain defendants advised plaintiff thatthe bill of particulars was not verified, was inadequate, and failed to contain a list of othermedical providers and medical authorizations to release those records. Subsequently, and uponthe consent of plaintiff's counsel, Supreme Court issued a conditional order in February 2008dismissing the action on the merits, with prejudice, unless plaintiff complied by March 11, 2008.When plaintiff again failed to comply, Young, United Health, Carlin, Bedosky and Stone(hereinafter collectively referred to as defendants) moved to dismiss the action pursuant to theterms of the court's conditional order, which the court granted, dismissing the action on themerits and with prejudice. Plaintiff now appeals.
Initially, plaintiff raises several arguments for the first time on appeal, including that therewas no showing of willful or deliberate violation of the conditional order. In opposingdefendants' motions, however, plaintiff only cursorily argued that she had provided an adequatebill of particulars, abandoning any issues pertaining to the willfulness of her noncompliance,possible explanations for failing to verify the bill of particulars or to provide the requested list ofmedical providers and medical authorizations to release medical records from other medicalproviders, or giving any defenses to the discovery requests. By failing to raise these issues beforeSupreme Court, plaintiff has not preserved them for our review (see CPLR 5501 [a] [3];see also Dunn v Northgate Ford,Inc., 16 AD3d 875, 878 [2005]). In addition, by consenting to the conditional order,plaintiff waived any claims challenging the underlying discovery demands or bills of particulars.As such, the sole issue on appeal relates to plaintiff's noncompliance with the court'sconditional order and not, as plaintiff attempts to argue, to the validity or scope ofdefendants' discovery demands.
"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" (Myers v Community Gen. Hosp. of Sullivan County, 51AD3d [*3]1359, 1360 [2008] [citations omitted]; see Kihl vPfeffer, 94 NY2d 118, 122-123 [1999]). A review of the record before us fails to discloseany grounds for concluding that Supreme Court abused its discretion in granting defendants'motions to dismiss given plaintiff's failure to comply in any respect with the conditional order, towhich plaintiff had consented (see id.; see also Arts4All, Ltd. v Hancock, 12 NY3d 846, 847 [2009]; Manrique v New York-PresbyterianHosp., 40 AD3d 270 [2007]; Martel v Chupka, 26 AD3d 474, 475 [2006]). Notably, plaintiffnever objected to any of the requested disclosure (see CPLR 3122) and, despite repeatedrequests, failed—without explanation—to verify her bill of particulars, as requiredin this negligence action (see CPLR 3044; Martinovics v New York City Health &Hosps. Corp., 285 AD2d 532, 535 [2001]).
Contrary to the claim raised for the first time on appeal, defendants' request for a list ofdecedent's prior treating physicians and for authorization to release their medical records was notprotected by the patient-physician privilege, which plaintiff waived with respect to thosephysical conditions that she affirmatively placed in issue in this lawsuit, namely, decedent'sdeath allegedly due to defendants' failure to compare decedent's test results with prior ones onrecord (see Dillenbeck v Hess, 73 NY2d 278, 287 [1989]; Rothstein v Huh, 60 AD3d 839,839 [2009]; Rossi v Budget Rent ACar/Budget Car & Truck Rental, 49 AD3d 1088, 1088-1089 [2008], lv denied11 NY3d 709 [2008]). Given this waiver, defendants were entitled to full disclosure regardingdecedent's medical treatment, if any, prior to the date of the alleged negligence, including thefurnishing of medical authorizations for those records (see CPLR 3121 [a]; Rossi vBudget Rent A Car/Budget Car & Truck Rental, 49 AD3d at 1089; Poser v Varnovitsky, 46 AD3d1295, 1296 [2007]; see also Rothstein v Huh, 60 AD3d at 839). In view of plaintiff'srefusal to submit letters of administration verifying her authority to act on behalf of decedent'sestate, and her failure—despite repeated requests from defendants' counsel—toprovide any further discovery after the conditional order issued or to present any excusefor her noncompliance, thereby "evad[ing] her disclosure obligations and frustrat[ing] thedisclosure process" (Rossi v Budget Rent A Car/Budget Car & Truck Rental, 49 AD3dat 1089; see Kihl v Pfeffer, 94 NY2d at 123), "an inference of willful and contumaciousconduct" was warranted (Cavanaugh vRussell Sage Coll., 4 AD3d 660, 661 [2004]). Thus, Supreme Court was justified indismissing her complaint, regardless of the adequacy of her unverified bill of particulars(see CPLR 3126 [3]).
Peters, J.P., Rose, Kane and Stein, JJ., concur. Ordered that the order is affirmed, with onebill of costs.
Footnote *: Carlin's answer is not in therecord. Defendant Mary Schrouder did not submit papers to Supreme Court and has not appearedon the appeal.