| Legarreta v Neal |
| 2013 NY Slip Op 05129 [108 AD3d 1067] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| Edward A. Legarreta, M.D., Respondent, v MelissaA.L. Neal, M.D., et al., Appellants. Melissa Neal, M.D., Appellant, v Edward A.Legarreta, M.D., et al., Respondents. (Appeal No. 2.) |
—[*1] Jaeckle Fleischmann & Mugel, LLP, Buffalo (Bradley A. Hoppe of counsel), forplaintiff-respondent and defendants-respondents.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.),entered January 25, 2012. The order, among other things, directed that the answer ofdefendants-appellants shall be stricken if a patient list was not produced by February 1,2012.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: These four appeals arise out of two consolidated actions. Edward A.Legarreta, M.D. commenced the first action against Melissa A.L. Neal, M.D. and Twenty20 Eye Care and Aesthetic Oculoplastic Medicine, PLLC (Twenty 20) (collectively,defendants) seeking damages for, inter alia, Dr. Neal's alleged breach of her employmentcontract with Dr. Legarreta and misappropriation of trade secrets (hereafter, contractaction). Dr. Neal thereafter commenced the second action against Dr. Legarreta, SallyLegarreta (Sally), who is Dr. Legarreta's wife, and the Legarreta Eye Center (collectively,Legarretas) seeking damages for, among other things, injuries she allegedly sustained asa result of an assault by Sally (hereafter, personal injury action). In appeal No. 1,defendants, as limited by their brief, appeal from an order insofar as it granted that part ofLegarretas' motion seeking to compel defendants to produce a complete list of all of Dr.Neal's patients in the contract action, and authorizations for the release of medicalrecords relating to her neck, shoulder, arm, wrist, and hand in the personal injury action.In appeal No. 2, defendants, as limited by their brief, appeal from an order insofar as itgranted that [*2]part of Legarretas' motion seeking anorder striking defendants' answer in the contract action in the event that defendants failedto produce a complete patient list by February 1, 2012. In appeal No. 3, defendantsappeal from an order and judgment that, inter alia, granted that part of Legarretas' motionfor a default judgment against defendants in the contract action pursuant to theself-executing order in appeal No. 2. In appeal No. 4, Dr. Neal appeals from an order andjudgment granting that part of the Legarretas' motion to strike her complaint in thepersonal injury action.
Initially, we note that appeal No. 1 must be dismissed inasmuch as the underlyingorder was superseded by the order in appeal No. 2 (see Wall v Villa Roma ResortLodges, 299 AD2d 351, 351 [2002]; see generally Matter of Eric D. [appealNo. 1], 162 AD2d 1051, 1051 [1990]). With respect to the remaining appeals, CPLR3126 provides that "[i]f any party . . . refuses to obey an order for disclosureor wilfully fails to disclose information which the court finds ought to have beendisclosed . . . , the court may make such orders with regard to the failure orrefusal as are just," including "an order striking out pleadings or parts thereof, orstaying further proceedings until the order is obeyed, or dismissing the action or any partthereof, or rendering a judgment by default against the disobedient party" (CPLR 3126[3]). "Generally, the nature and degree of the penalty to be imposed pursuant to CPLR3126 against a party who refuses to comply with court-ordered discovery is a matterwithin the discretion of the court" (Mahopac Ophthalmology, P.C. v Tarasevich, 21 AD3d351, 352 [2005]; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Sugar Foods De Mexico vScientific Scents, LLC, 88 AD3d 1194, 1196 [2011]; Hill v Oberoi, 13 AD3d1095, 1096 [2004]). The language in CPLR 3126 that "permits courts to fashionorders as are just . . . broadly empowers a trial court to craft a conditionalorder—an order that grants the motion and imposes the sanction unless within aspecified time the resisting party submits to the disclosure" (Gibbs v St. Barnabas Hosp.,16 NY3d 74, 79 [2010] [internal quotation marks omitted]; see Patrick M.Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLRC3126:10).
We conclude with respect to appeal No. 2 that Supreme Court properly exercised itsdiscretion in granting a conditional order striking the answer in the contract action unlessdefendants produced Dr. Neal's patient list by February 1, 2012 (see Pugliese v Mondello, 67AD3d 880, 881 [2009], lv dismissed 14 NY3d 873 [2010]). Dr. Legarretafirst demanded the patient list in July 2011 and, despite two motions to compel, Dr. Nealfailed to turn over her patient list. In a bench decision dated December 1, 2011, the courtdirected Dr. Neal to produce "a complete list of all of her patients, including names,addresses and dates of treatment, . . . by December 22, 2011," andspecifically instructed the Legarretas that they could move to strike defendants' answer inthe contract action in the event Dr. Neal failed to comply. That decision was reduced toan order entered December 19, 2011, i.e., the order in appeal No. 1 (hereafter, December2011 order).
Defendants, however, failed to produce a patient list by the court-imposed deadline,and the Legarretas moved to strike defendants' answer based upon defendants' willfulviolation of the December 2011 order. In a bench decision dated January 12, 2012, thecourt determined that Dr. Neal intentionally violated the December 2011 order inasmuchas she provided no basis for her failure to produce the patient list. By order enteredJanuary 25, 2012, i.e., the order in appeal No. 2, the court directed that defendants'answer in the contract action would "be stricken immediately" if they did not produce thepatient list "on or before February 1, 2012" (hereafter, January 2012 conditional order).
On February 1, 2012, the deadline set forth in the January 2012 conditional order,defendants sought a stay from a justice of this Court pending their appeal from theDecember 2011 order and the January 2012 "decision." Although a justice of this Courtsigned a temporary stay of enforcement, it thereafter became apparent that defendantshad not filed a notice of appeal from the January 2012 conditional order and thus that thisCourt had no jurisdiction to grant [*3]relief with respectto that order (see CPLR 5519 [c]). Defendant's appeal from the December 2011order had been rendered moot by the subsequent order, as noted above. Inasmuch as thetemporary stay had no effect on the January 2012 conditional order, which wasself-executing, defendants' answer was stricken when they failed to produce the patientlist by February 1, 2012 (see Gibbs, 16 NY3d at 82-83; Foster v Dealmaker, SLS,LLC, 63 AD3d 1640, 1641 [2009], lv denied 15 NY3d 702 [2010]; Zouev v City of New York, 32AD3d 850, 850-851 [2006]). Even assuming, arguendo, that the temporary stayextended the deadline for compliance with the conditional order, we conclude that theJanuary 2012 conditional order became absolute when defendants failed to turn over thepatient list immediately upon the expiration of the stay.
It is well established that, in order to "obtain relief from the dictates of a conditionalorder . . . , the defaulting party must demonstrate (1) a reasonable excusefor the failure to produce the requested items and (2) the existence of a meritorious claimor defense" (Gibbs, 16 NY3d at 80). Here, defendants failed to establish areasonable excuse for their failure to comply with the conditional order (see Lee v Arellano, 18 AD3d620, 621 [2005]; cf. Zouev, 32 AD3d at 850). Notably, defendants hadalmost seven months within which to comply with the Legarretas' demand for Dr. Neal'spatient list. As noted above, the court first ordered Dr. Neal to turn over the patient list inDecember 2011. Instead of seeking an extension of time to comply with that order or astay of enforcement thereof, defendants simply ignored the court-ordered deadline. Withrespect to the January 2012 conditional order, defendants did not produce the patient listas ordered by February 1, 2012 and, instead, waited until that date to make a defectivestay application.
Although defendants contend that Dr. Neal's failure to turn over the patient list byFebruary 1, 2012 was not willful or contumacious, it is well settled that, "where aconditional order ha[s] previously been entered based on the court's findings that a partyha[s] caused delay and failed to comply with the court's discovery orders, the court [i]snot required to find that [the defaulting party]'s conduct in failing to comply with theconditional order was 'willful' " (Keller v Merchant Capital Portfolios, LLC, 103 AD3d 532,533 [2013]; see Gibbs, 16 NY3d at 82; Siegel, NY Prac § 367 at 608 [4thed 2005]). In any event, the court here concluded that "the uncontradicted evidenceshows that this time Dr. Neal's refusal to comply with the Court's order was indeedwillful and contumacious."
Inasmuch as defendants failed to demonstrate a reasonable excuse for their violationof the conditional order, we conclude with respect to the order and judgment in appealNo. 3 that the court properly granted Legarretas' motion for entry of a default judgmentagainst defendants on all of the remaining causes of action in the contract action (seeKeller, 103 AD3d at 533; Sugar Foods De Mexico, 88 AD3d at 1196; Callaghan v Curtis, 48 AD3d501, 502 [2008]; cf. Gibbs, 16 NY3d at 83).
We conclude with respect to appeal No. 4 that the court did not abuse its discretionin striking Dr. Neal's complaint in the personal injury action based upon her failure todisclose prior treatment for injuries to her neck and left arm. It is well settled that"[w]hile the nature and degree of the penalty to be imposed on a motion pursuant toCPLR 3126 is a matter of the Supreme Court's discretion, striking a pleading isappropriate [only] where there is a clear showing that the failure to comply withdiscovery demands is willful, contumacious, or in bad faith" (Hill, 13 AD3d at1096 [internal quotation marks omitted]; see Luppino v Mosey, 103 AD3d 1117, 1119 [2013]; Hann v Black, 96 AD3d1503, 1504 [2012]). "The willful or contumacious character of a party's conduct canbe inferred from the party's repeated failure to respond to demands or to comply withdiscovery orders" (Flynn v Cityof New York, 101 AD3d 803, 805 [2012]; see Doherty v Schuyler Hills, Inc., 55 AD3d 1174, 1176[2008]). "Once a moving party establishes that the failure to comply with a disclosureorder was willful, contumacious or in bad faith, the burden shifts to the nonmoving partyto offer a reasonable excuse" (Hann, 96 AD3d at 1504-1505 [internal quotation[*4]marks omitted]).
Here, we conclude that the Legarretas established that Dr. Neal's failure to discloseher prior treatment was willful or contumacious based upon her repeated failure toproduce requested medical authorizations and defendants' overall pattern ofnoncompliance in both the contract and personal injury actions (see Doherty, 55AD3d at 1176; see generally Hann, 96 AD3d at 1505; Hill, 13 AD3d at1096). The Legarretas first requested authorizations for "all medical and hospital recordsrelating to the physical condition of [Dr. Neal] as set forth in the plaintiff's complaint" inJuly 2011. After the Legarretas made a motion to compel, Dr. Neal producedauthorizations that were limited to treatment she received after June 12, 2009, the date ofthe alleged assault. The Legarretas thereafter demanded production of "all of Dr. Neal'smedical records, without any kind of temporal limitation, relating in any way toher neck and the arm, wrist and hand that are the subject of this action" (emphasisadded). The Legarretas noted in correspondence with counsel for defendants that "Dr.Neal obviously treated with other physicians prior to June 12, 2009, including physiciansin the locations she lived in prior to coming to Buffalo in 2006, including. . . Pennsylvania . . . We need authorizations from all suchphysicians, without any kind of temporal limitation, relating in any way to her neck andthe arm, wrist and hand that are the subject of this action."
When defendants failed to provide the requested authorizations, the Legarretas filedanother motion to compel in November 2011 seeking to strike defendants' complaint inthe personal injury action unless Dr. Neal produced "complete medical authorizations foreach and every physician she has treated with regarding injuries to her neck, shoulder,arm, wrist and hand that [were] the subject of th[at] action." The court granted theLegarretas' motion and ordered Dr. Neal to produce authorizations for the disclosure ofall of her "adult medical records, i.e.[,] after her 21st birthday," relating to any treatmentof her neck, shoulder, arm, wrist, and hand, both before and after the incident. Inresponse, Dr. Neal provided revised authorizations that were again limited to medicalproviders she treated with after the date of the incident. In a January 2012 affirmation,Dr. Neal averred that she had produced authorizations concerning "all medical recordssince [she] was 21 years of age for treatment related to [her] 'neck, shoulder, arm, wristand hand.' " Further, in a January 2012 deposition, Dr. Neal unequivocally testified thatshe experienced no symptoms and sought no medical treatment with respect to her leftshoulder, arm, wrist, or hand prior to the June 12, 2009 incident, including during thefour years she attended medical school in Pennsylvania.
Notwithstanding Dr. Neal's assertion, the Legarretas requested medicalauthorizations for doctors she treated with in Pennsylvania. In May 2012, Dr. Neal's newattorney finally provided the requested authorizations. The medical records producedthereto revealed that, despite her sworn assertions to the contrary, Dr. Neal had indeedsought treatment for her neck and left arm prior to the incident at issue. In November1996, Dr. Neal went to two different emergency rooms on three consecutive days aftershe was involved in a motor vehicle accident. Although Dr. Neal asserted that she simply"did not recall" those three hospital visits, we conclude that the court did not abuse itsdiscretion in rejecting her excuse, particularly in light of a similar situation that occurredin 2011 in the contract action.
We thus conclude that the court did not abuse its discretion in determining that Dr.Neal's failure to reveal her prior injuries and her attempts to frustrate the Legarretas'access to relevant medical records was willful and contumacious, and that her allegedinability to recall those prior injuries did not constitute a reasonable excuse (seeHill, 13 AD3d at 1096; seealso Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 208-209 [2012]; Roug Kang Wang v Chien-TsangLin, 94 AD3d 850, 852 [2012]; Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc.,94 AD3d 491, 492 [2012]). The court therefore properly exercised its discretion instriking Dr. Neal's complaint in the [*5]personal injuryaction (cf. Hill, 13 AD3d at 1096). Present—Scudder, P.J., Peradotto,Lindley, Sconiers and Whalen, JJ.