| Mary Imogene Bassett Hosp. v Cannon Design, Inc. |
| 2011 NY Slip Op 03939 [84 AD3d 1543] |
| May 12, 2011 |
| Appellate Division, Third Department |
| Mary Imogene Bassett Hospital, Doing Business as BassettHealthcare, Respondent, v Cannon Design, Inc., Appellant. |
—[*1] Persun & Heim, P.C., Mechanicsburg, Pennyslvania (Matthew E. Hamlin of counsel), forrespondent.
McCarthy, J. Appeal from that part of an order of the Supreme Court (Dowd, J.), enteredJune 30, 2010 in Otsego County, which denied defendant's cross motion to, among other things,dismiss the complaint.
Plaintiff commenced this action alleging that defendant committed professional malpracticeand breached a contract wherein defendant agreed to provide architectural and design services toupgrade one of plaintiff's hospital buildings. This Court upheld Supreme Court's resolution of aprior disclosure dispute (66 AD3d 1286 [2009]) and, concurrent with this appeal, is affirming thedenial of defendant's cross motion for summary judgment dismissing the complaint (MaryImogene Bassett Hosp. v Cannon Design, Inc., 84 AD3d 1524 [2011] [decided herewith]).As part of the parties' ongoing battle over disclosure, plaintiff moved to compel depositions.Defendant cross-moved to dismiss the complaint or, in the alternative, dismiss plaintiff's claimfor consequential damages or preclude plaintiff from offering evidence of damages unlessplaintiff "produce[d] each and every piece of paper in its control regarding" damages. SupremeCourt denied the motions without prejudice. The court did, however, amend the scheduling orderto, among other things, require plaintiff to provide further documentation of its direct andconsequential damages, a revised estimate of its damages and a [*2]privilege log identifying any documents which it withheld basedupon a claim of privilege. Defendant appeals from so much of the order as denied its crossmotion to dismiss the complaint.
We affirm. Trial courts have broad discretion in supervising the discovery process, and thisCourt generally will decline to interfere with the resolution of such disputes absent a clear abuseof that discretion (see Pierson v NorthColonie Cent. School Dist., 74 AD3d 1652, 1653 [2010], lv denied 15 NY3d715 [2010]; 66 AD3d at 1286). While a court may order dismissal of an action or a claim thereinas a penalty for noncompliance with disclosure demands or orders (see CPLR 3126 [3]),this type of drastic remedy is reserved for situations where a party's failure to comply is "willful,contumacious, or in bad faith" (Harris v City of New York, 211 AD2d 663, 664 [1995];see Pangea Farm, Inc. v Sack, 51AD3d 1352, 1354 [2008]; Altu vClark, 20 AD3d 749, 750 [2005]). Here, we previously found that plaintiff was initiallydelayed in presenting its proof of damages because it needed to review drawings and engineeringinformation that defendant did not timely provide (66 AD3d at 1286-1287). After receiving thedrawings and information, plaintiff submitted several amended and supplemental answers tointerrogatories, providing greater specificity and support for its claimed damages. These efforts,while perhaps not providing defendant with all of the information to which it is entitled, cannotbe considered a willful or bad faith failure to comply with disclosure obligations. Considering itsknowledge of the history of this litigation, Supreme Court did not abuse its discretion in denyingdefendant's cross motion, without prejudice, and imposing a scheduling order that requiresplaintiff to provide further information and documents (see id.).
Spain, J.P., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.