| Silberstein v Maimonides Med. Ctr. |
| 2013 NY Slip Op 05813 [109 AD3d 812] |
| September 11, 2013 |
| Appellate Division, Second Department |
| Shimon Silberstein, an Infant, by His Father and NaturalGuardian, Joseph Silberstein, et al., Appellants, v Maimonides Medical Center etal., Respondents. |
—[*1] McAloon & Friedman, P.C., New York, N.Y. (Gina Bernardi Di Folco and LauraShapiro of counsel), for respondents Maimonides Medical Center, Michael Tosi, andMatthew Tito. Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler andArshia Hourizadeh of counsel), for respondents Rivka Stein, Kindercare Pediatrics, LLP,Jeffrey Marc Dick, and Jay R. Begun.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffsappeal (1), as limited by their brief, from so much of an order of the Supreme Court,Kings County (Steinhardt, J.), dated January 4, 2011, as granted the motion of thedefendants Rivka Stein, Kindercare Pediatrics, LLP, Jeffrey Marc Dick, and Jay R.Begun, and the cross motion of the defendants Maimonides Medical Center, MichaelTosi, and Matthew Tito, pursuant to CPLR 3126 to dismiss the complaint insofar asasserted against each of them, and (2) a judgment of the same court dated March 28,2011, which, upon the order, is in favor of the defendants and against them, dismissingthe complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately andfiling separate briefs.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of the judgment in the action (see Matterof Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the orderare brought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The infant plaintiff, by his parents, and his parents suing derivatively, commencedthis action to recover damages allegedly sustained as a result of the defendants'malpractice [*2]regarding the treatment of the infantplaintiff's herpes infection. In a decision and order on a prior appeal, this Courtconcluded that the Supreme Court providently exercised its discretion in directing theplaintiffs to disclose the identity of the mohel who performed the circumcision, whichincluded the ritual of metzitzah b'peh, on the infant plaintiff, "as the identity of the mohelwas material and necessary to the defense of the action" (Silberstein v Maimonides Med.Ctr., 77 AD3d 910, 910 [2010]).
Subsequently, the plaintiffs continued to refuse to disclose the mohel's identity asdirected by the Supreme Court, and the infant plaintiff's parents invoked their privilegeagainst self-incrimination pursuant to the Fifth Amendment to the United StatesConstitution. The Supreme Court then granted the motion of the defendants Rivka Stein,Kindercare Pediatrics, LLP, Jeffrey Marc Dick, and Jay R. Begun, and the cross motionof the defendants Maimonides Medical Center, Michael Tosi, and Matthew Tito,pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against each of them.In its order granting the motions, the Supreme Court noted that the privilege againstself-incrimination was to be used solely as a shield and not as a sword by the plaintiffs tothwart discovery of information which was deemed to be material and necessary to thedefense of this action. Thereafter, judgment was entered in favor of the defendants andagainst the plaintiffs, dismissing the complaint.
"The Supreme Court has broad discretion in making determinations concerningmatters of disclosure, including the nature and degree of the penalty to be imposed underCPLR 3126" (Arpino v F.J.F. &Sons Elec. Co., Inc., 102 AD3d 201, 209 [2012] [citations omitted]; see Kihlv Pfeffer, 94 NY2d 118, 122-123 [1999]; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d798, 800 [2010]). "The striking of a pleading may be appropriate where there is aclear showing that the failure to comply with discovery demands is willful orcontumacious" (Montemurro vMemorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066 [2012]; see Commisso v Orshan, 85AD3d 845, 845 [2011]; Byam v City of New York, 68 AD3d 798, 800 [2009]).Further, the court can infer that a party is acting willfully and contumaciously through hisor her repeated failure to respond to demands or to comply with discovery orders (see Flynn v City of New York,101 AD3d 803, 805 [2012]; Montemurro v Memorial Sloan-Kettering CancerCtr., 94 AD3d at 1066; Commisso v Orshan, 85 AD3d at 845).
Here, the Supreme Court providently exercised its discretion in dismissing thecomplaint, as there was a clear showing that the plaintiffs' failure to comply with thedefendants' demand for the mohel's identity and subsequent court orders directing thedisclosure of this information, without a reasonable excuse, was willful andcontumacious (see CherubinAntiques, Inc. v Matiash, 106 AD3d 861, 862 [2013]; Montemurro vMemorial Sloan-Kettering Cancer Ctr., 94 AD3d at 1066; Vanalst v City of NewYork, 302 AD2d 515, 516 [2003]; see also Flynn v City of New York, 101AD3d at 805). Contrary to the plaintiffs' contention, the Supreme Court providentlyexercised its discretion in dismissing the entire complaint rather than only dismissing theparents' derivative causes of action (see Lichtenstein v Fantastic Mdse. Corp., 46 AD3d 762,764 [2007]; Yona v Beth Israel Med. Ctr., 285 AD2d 460, 461 [2001]; Stahlv Rhee, 220 AD2d 39, 44 [1996]). Rivera, J.P., Skelos, Chambers and Austin, JJ.,concur.