| Luppino v Mosey |
| 2013 NY Slip Op 00611 [103 AD3d 1117] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| James Luppino, Successor Administrator of the Estate ofMaria V. Luppino, Deceased, Appellant, v Acea M. Mosey, as Administrator of theEstate of William E. O'Brien, M.D., Deceased, et al., Defendants, and Catholic HealthSystem, Doing Business as Kenmore Mercy Hospital,Respondent. |
—[*1] Damon Morey LLP, Buffalo (Julie M. Bargnesi of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.),entered July 19, 2011. The order, inter alia, granted the motion of defendant CatholicHealth System, doing business as Kenmore Mercy Hospital, to confirm the Report andRecommendation of the Judicial Hearing Officer.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by vacating the first through third ordering paragraphs and denying that part of themotion of defendant Catholic Health System, doing business as Kenmore MercyHospital, for leave to renew and as modified the order is affirmed without costs, the orderentered October 28, 2010 referring the matter to a judicial hearing officer is reversed, andthe matter is remitted to Supreme Court, Erie County, for further proceedings inaccordance with the following memorandum: We agree with plaintiff that Supreme Courterred in granting that part of the motion of Catholic Health System, doing business asKenmore Mercy Hospital (defendant), seeking leave to renew its opposition to plaintiff'smotion to strike the answer (seeCarroway Luxury Homes, LLC v Integra Supply Corp., 57 AD3d 1448, 1449[2008]; McNerney vFundalinski, 48 AD3d 1256, 1257 [2008]; Moss v McKelvey, 32 AD3d 1281, 1282 [2006]). We noteas background that plaintiff moved to strike defendant's answer on, inter alia, the groundthat defendant willfully ignored an April 2007 order compelling it to produce certaincontract documents, which order was affirmed by this Court (Luppino v O'Brien, 59 AD3d991, 992 [2009]). A motion for leave to renew must be "based upon new facts notoffered on the prior motion that would change the prior determination" and "shall containreasonable justification for the failure to present such facts on the prior motion" (CPLR2221 [e] [2], [3]; see Blazynskiv A. Gareleck & Sons, Inc., 48 AD3d 1168, 1170 [2008], lv denied 11NY3d 825 [2008]). Here, defendant offered no new facts in support of that part of itsmotion for leave to renew; rather, defendant again submitted a 2007 affidavit from itsVice-President of Compliance and Administrative Services (Vice-President), wherein heaverred that some of the [*2]documents sought byplaintiff did not exist (2007 affidavit). We therefore modify the order by denying thatpart of defendant's motion for leave to renew its opposition to plaintiff's motion to strikedefendant's answer.
Contrary to the further contention of plaintiff, however, the court properly grantedthat part of defendant's motion for leave to reargue its opposition to plaintiff's motion tostrike defendant's answer on the ground that the court misapprehended the facts and thelaw in determining that motion (see CPLR 2221 [d] [2]). In granting plaintiff'smotion, the court stated that, because defendant asserted the same position that it assertedwhen it opposed plaintiff's original motion to compel discovery of the contractdocuments, defendant was in essence requesting that the court overrule the April 2007order and this Court's affirmance thereof. The court therefore reasoned that it was "left. . . with no option except to fashion a remedy for [defendant]'s failure tocomply with the previous discovery orders of the court." Defendant's position inopposition to the motion to strike its answer, however, was that it had complied with theApril 2007 order by producing all of the requested contract documents in existence. Anyquestion concerning the existence or nonexistence of the specific contract documents atissue here, however, was not before the court that granted the April 2007 order or thisCourt on appeal (see Luppino, 59 AD3d at 992). Thus, the court's June 2010order (2010 order) striking defendant's answer was based upon the court'smisapprehension that it had no choice but to penalize defendant for failing to produce thecontract documents at issue.
Although the court on the motion to renew could not have considered the 2007affidavit because it did not contain new facts and defendant failed to establish areasonable justification for not presenting it earlier (see CPLR 2221 [e];Blazynski, 48 AD3d at 1170), the court should have considered that affidavit inopposition to plaintiff's motion to strike defendant's answer.
"We have repeatedly held that the striking of a pleading is appropriate only wherethere is a clear showing that the failure to comply with discovery demands is willful,contumacious, or in bad faith" (Hann v Black, 96 AD3d 1503, 1504 [2012] [internalquotation marks omitted]). "Once a moving party establishes that the failure to complywith a disclosure order was willful, contumacious or in bad faith, the burden shifts to thenonmoving party to offer a reasonable excuse" (WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d1616, 1619 [2011]). Here, plaintiff met his initial burden, "thereby shifting theburden to defendant to offer a reasonable excuse" for its noncompliance with thedisclosure order (Hill vOberoi, 13 AD3d 1095, 1096 [2004]). Defendant, however, offered such anexcuse by submitting the 2007 affidavit, and the court should have determined the meritsof that excuse.
We agree with plaintiff, however, that, upon reargument, the court abused itsdiscretion in referring the matter to a judicial hearing officer (JHO). We therefore reversethe order of referral. CPLR 4212 provides in pertinent part that, "[u]pon the motion of a[] party . . . or on its own initiative, the court may submit any issue of factrequired to be decided by the court to an advisory jury or, upon a showing of someexceptional condition requiring it . . . , to a referee to report" (CPLR4212 [emphasis added]; see Martin-Trigona v Waaler & Evans, 148 AD2d 361,363 [1989]). "[T]he 'exceptional condition' requirement of CPLR 4212 . . .is not met if the issue can be decided by the court 'without extraordinary impingement on[its] regular business' " (Siegel, NY Prac § 379 at 644 [4th ed 2005], quotingMatter of Wilder v Straus-Duparquet, 5 AD2d 1, 3 [1957]; see Miller v AlbertinaRealty Co., Inc., 198 App Div 340, 343 [1921]).
Here, the issue referred to the JHO was "whether [defendant] complied with the[April 2007 order]," i.e., whether the relevant documents sought to be produced byplaintiff exist and are able to be produced. We conclude that defendant failed to establishany "exceptional condition" warranting a referral of that issue to a JHO (CPLR 4212).Although the ultimate issue [*3]whether defendantcomplied with the April 2007 order is sharply contested, the underlying issue, i.e.,whether and to what extent certain documents exist or can be reproduced, is not factuallycomplicated (cf. Walter vWalter, 38 AD3d 763, 765 [2007]; Rosen v Rosen, 16 AD3d 398, 399 [2005]; Matter ofCivil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO [State of New York],273 AD2d 668, 671 [2000]). While a hearing was warranted due to the conflictingpositions of the parties, referral to a JHO was not necessary. As the court stated inWilder (5 AD2d at 2-3), "[w]hile the issue raised in this case may not be toosummarily determined, there is no justification in protracting the proceedings as is likelyto occur on a reference, nor in imposing the attendant expense on the parties. The court iseminently capable of determining the issue expeditiously, and without extraordinaryimpingement on the regular business of the court."
The only justification offered by defendant in support of reference to a JHO was thatthe JHO to whom the issue was referred was the judge who granted the April 2007 orderprior to his retirement from the bench and thus that he could provide "insight" into themeaning of that order. We conclude, however, that there was no need for aninterpretation or explanation of the April 2007 order, which speaks for itself. The ordersimply required defendant to produce, inter alia, the contract documents in question. Theonly issue that remained was whether defendant had complied with those portions of theApril 2007 order, an issue that did not require the knowledge or particular expertise ofthe JHO.
We therefore further modify the order on appeal by vacating those parts of the orderconfirming and adopting the JHO's report and recommendation and finding thatdefendant complied with the April 2007 order. We remit the matter to Supreme Court todetermine whether defendant complied with the April 2007 order and, if not, whetherdefendant has "willfully and contumaciously" refused to produce the requesteddocuments such that the 2010 order striking defendant's answer should stand. We notethat, until the issue of defendant's compliance with the April 2007 order is determinedafter an evidentiary hearing, it is premature to consider plaintiff's contention that thecourt erred in vacating the 2010 order.
Finally, in light of our conclusion that the matter was improperly referred to a JHO,we need not address plaintiff's further contention that the JHO should have conducted anevidentiary hearing and that he exceeded the scope of his authority.Present—Smith, J.P., Peradotto, Carni, Sconiers and Whalen, JJ.