| Vaccaro v Weinstein |
| 2014 NY Slip Op 03825 [117 AD3d 1033] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| Salvatore Vaccaro et al., Appellants, v StevenWeinstein, M.D., Respondent, et al., Defendants. |
Wallace & Associates, P.C., Yonkers, N.Y. (Larry Wallace of counsel), forappellants.
Rogak & Gibbons, LLP, Uniondale, N.Y. (David B. De Siver ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffsappeal from an order of the Supreme Court, Queens County (O'Donoghue, J.), enteredApril 16, 2012, which denied their motion pursuant to CPLR 3126, inter alia, to strikethe answer of the defendant Steven Weinstein, or to impose costs and sanctions and tocompel him to appear for a deposition in Queens County, and granted the cross motion ofthe defendant Steven Weinstein for a protective order precluding the plaintiffs fromconducting any further depositions of him.
Ordered that the order is affirmed, with costs.
A preliminary conference order provided, inter alia, that the deposition of thedefendant Steven Weinstein was to be held at the office of his counsel in Nassau County.Following that deposition, the plaintiffs moved to compel an additional deposition ofWeinstein, and the Supreme Court granted that relief. The attorneys for the plaintiffs andWeinstein then exchanged correspondence in which Weinstein's attorney insisted that theadditional deposition take place at his office in Nassau County, and the plaintiffs'attorney insisted that the additional deposition take place in Queens, where the actionwas venued. On the scheduled date of the additional deposition, Weinstein was present athis counsel's office in Nassau County, while the plaintiffs' counsel was at the office of areporting service in Queens. Following Weinstein's failure to appear at the Queenslocation, the plaintiffs moved pursuant to CPLR 3126 to strike Weinstein's answer for hisfailure to comply with the court's order, or in the alternative, to impose costs andsanctions and to compel him to appear for a deposition in Queens County. Weinsteincross-moved for a protective order precluding any further depositions of him, based onthe plaintiffs' counsel's failure to appear at the additional deposition in Nassau County.The Supreme Court denied the plaintiffs' motion and granted Weinstein's crossmotion.
The scope of discovery in a civil action is governed by CPLR 3101 (a) (see Friel v Papa, 87 AD3d1108, 1110 [2011]; Auerbach v Klein, 30 AD3d 451, 451-452 [2006]). Thesupervision of discovery is generally left to the broad discretion of the trial court, whichmay issue a protective order to restrict discovery and prevent abuse (see Geffner v Mercy Med. Ctr.,83 AD3d 998 [2011]; Latture v Smith, 304 AD2d 534, 536[2003]).
[*2] The extreme sanction of strikingWeinstein's answer was not warranted by the conduct herein, which does not support aninference of willful and contumacious conduct (see Pinto v Tenenbaum, 105 AD3d 930, 931 [2013]; Boeke v Our Lady of PompeiSchool, 73 AD3d 825, 826 [2010]; Sullivan v Nigro, 48 AD3d 454 [2008]; cf. Reid vSchoenthal, 288 AD2d 203, 204 [2001]). In addition, contrary to the plaintiffs'contentions, there was no basis in the record for an award of costs or sanctions based onWeinstein's alleged noncompliance with court-ordered discovery (see Knoch v City of NewYork, 109 AD3d 459 [2013]; O'Neill v Ho, 28 AD3d 626, 627 [2006]).
Furthermore, the Supreme Court providently exercised its discretion in precludingfurther depositions of Weinstein (see Friel v Papa, 87 AD3d 1108 [2011]; Auerbach v Klein, 30 AD3d451 [2006]; Latture v Smith, 304 AD2d at 536). Dickerson, J.P., Leventhal,Hall and Lott, JJ., concur.