| Nunez v Long Is. Jewish Med. Ctr.-Schneider Children'sHosp. |
| 2011 NY Slip Op 01629 [82 AD3d 724] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Javon Nunez et al., Appellants, v Long Island JewishMedical Center-Schneider Children's Hospital et al., Respondents, et al.,Defendants. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and LenaHolubnyczyj of counsel), for respondents.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from anorder of the Supreme Court, Queens County (O'Donoghue, J.), dated July 10, 2009, whichgranted the motion of the defendants Long Island Jewish Medical Center-Schneider Children'sHospital, Alice McKnight Garner, Dennis Davidson, Barbara Cooney, Beverley Crearer, ShelleyCacchetti, and P. Williams for summary judgment dismissing the complaint insofar as assertedagainst those defendants, and denied their cross motion pursuant to CPLR 3126 to strike theanswer of those defendants, or to compel those defendants to appear for depositions.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the motion of the defendants Long Island JewishMedical Center-Schneider Children's Hospital, Alice McKnight Garner, Dennis Davidson,Barbara Cooney, Beverley Crearer, Shelley Cacchetti, and P. Williams (hereinafter collectivelythe defendants) for summary judgment dismissing the complaint insofar as asserted against them.The defendants' motion for summary judgment was made three years after the commencement ofthis action, and after the plaintiffs had filed their note of issue placing the action on the trialcalendar. "Summary judgment may not be defeated on the ground that more discovery is needed,where, as here, the side advancing such an argument has failed to ascertain the facts due to itsown inaction" (Meath v Mishrick, 68 NY2d 992, 994 [1986]; see Ward v New York City Hous.Auth., 18 AD3d 391, 392 [2005]; Household Bank [SB], N.A. v Mitchell, 12 AD3d 568, 569 [2004];Dennis v City of New York, 304 AD2d 611, 612-613 [2003]). Moreover, the defendantsestablished their prima facie entitlement to judgment as a matter of law through the submissionof an expert's affidavit, which demonstrated that they did not depart from good and acceptedmedical practice in treating the infant plaintiff shortly after his birth, and, in any event, that theirtreatment was not a proximate cause of the infant plaintiff's alleged injuries (see McKenzie v Clarke, 77 AD3d637, 638 [2010]; Heller vWeinberg, 77 AD3d 622 [2010]; Belak-Redl v Bollengier, 74 AD3d 1110, 1111 [2010]). Theplaintiffs opposed the motion solely by arguing that depositions of the defendants were needed toobtain the evidence necessary to defeat summary judgment. However, the plaintiffs made noshowing that any facts necessary to oppose summary judgment [*2]were exclusively within the defendants' knowledge, and theplaintiffs' mere hope that depositions might uncover the existence of such facts was insufficientto delay the summary judgment determination (see Shectman v Wilson, 68 AD3d 848, 850 [2009]; Trombetta v Cathone, 59 AD3d526, 527 [2009]; Giraldo vMorrisey, 63 AD3d 784, 785 [2009]).
The Supreme Court also providently exercised its discretion in denying the plaintiffs' motionto strike the defendants' answer, or to compel the defendants to appear for depositions. Thedrastic remedy of striking an answer is inappropriate absent a clear showing that the failure tocomply with discovery demands is willful or contumacious (see Palomba v Schindler El. Corp., 74 AD3d 1037 [2010]; Weber v Harley-Davidson Motor Co.,Inc., 58 AD3d 719, 722 [2009]; Escobar v Colonial Indem. Ins. Co., 22 AD3d 633 [2005]). Theplaintiffs made no showing that the delay in scheduling depositions was due to any willful orcontumacious conduct on the part of the defendants. Furthermore, the plaintiffs' alternativerequest to compel the defendants to appear for depositions was rendered academic by theSupreme Court's award of summary judgment to the defendants. Prudenti, P.J., Eng, Belen andSgroi, JJ., concur.