| Dimoulas v Roca |
| 2014 NY Slip Op 06170 [120 AD3d 1293] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Georgia Dimoulas et al., Appellants, v JavierRoca, M.D., et al., Respondents, et al., Defendants. |
Bruce G. Clark & Associates, P.C., Port Washington, N.Y. (Diane C. Cooper ofcounsel), for appellants.
Wagner, Doman & Leto, P.C., Mineola, N.Y. (Nicholas J. Albenese, Jr., ofcounsel), for respondent Javier Roca.
Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Eric B. Betron of counsel), forrespondents New York Hospital Queens and Sidney Obas.
In an action to recover damages for medical malpractice, etc., the plaintiffs appealfrom (1) an order of the Supreme Court, Queens County (O'Donoghue, J.), enteredJanuary 16, 2013, which granted the motion of the defendants New York HospitalQueens and Sidney Obas to conditionally preclude them from introducing, at trial,evidence of the neurological injuries sustained by the plaintiff Georgia Dimoulas and forthe imposition of sanctions against her pursuant to 22 NYCRR 130-1.1 (a) unless sheappeared for a neuropsychological examination, as set forth in a so-ordered stipulationdated November 1, 2012, and (2) an order of the same court entered March 11, 2013,which denied their motion, in effect, for the plaintiff Georgia Dimoulas to comply withthe so-ordered stipulation by appearing for the neuropsychological examination, and forleave to amend their bill of particulars.
Ordered that the orders are reversed, on the law, on the facts, and in the exercise ofdiscretion, with one bill of costs to the plaintiffs, payable by the respondents appearingseparately and filing separate briefs, the motion of the defendants New York HospitalQueens and Sidney Obas to conditionally preclude the plaintiffs from introducing, attrial, evidence of the neurological injuries sustained by the plaintiff Georgia Dimoulasand for the imposition of sanctions against her pursuant to 22 NYCRR 130-1.1 (a) unlessshe appeared for a neuropsychological examination, as set forth in a so-orderedstipulation dated November 1, 2012, is denied, the plaintiffs' motion, in effect, for anextension of time for the plaintiff Georgia Dimoulas to comply with the so-orderedstipulation by appearing for the neuropsychological examination, and for leave to amendtheir bill of particulars, is granted, and the plaintiffs' time to schedule the examination ofthe plaintiff Georgia Dimoulas and to serve an amended bill of particulars is extendeduntil 60 days after service upon the plaintiffs of a copy of this decision andorder.
[*2] The injured plaintiff, GeorgiaDimoulas, appeared on October 8, 2012, with her attorney for a neuropsychologicalexamination that was to be conducted by a physician retained jointly by New YorkHospital Medical Center Queens, sued herein as New York Hospital Queens, and thedefendant Sidney Obas, a physician's assistant (hereinafter together the hospitaldefendants). However, the examination was terminated early when the retained physicianwould not allow the plaintiffs' attorney to audiotape the examination. While the hospitaldefendants' subsequent motion to preclude the plaintiffs from offering any evidence ofher neurological injuries and for the imposition of sanctions was pending, the partiesentered into a so-ordered stipulation dated November 1, 2012, pursuant to which theplaintiff was directed to appear for a second time at an examination no later than January7, 2013.
In an order dated January 7, 2013, and entered January 16, 2013, the Supreme Courtconditionally granted the hospital defendants' motion unless the injured plaintiffappeared for an examination, as set forth in the so-ordered stipulation dated November 1,2012—that is, on January 7, 2013, the same date as the order. The plaintiffsmoved for an extension of time for the injured plaintiff to comply with the so-orderedstipulation by appearing for a neuropsychological examination, and for leave to amendthe bill of particulars. In an order entered March 11, 2013, the Supreme Court denied theplaintiffs' motion.
"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] [citation omitted]; see Roug Kang Wang vChien-Tsang Lin, 94 AD3d 850 [2012]). However, "before a court invokes thedrastic remedy of striking a pleading, or even of precluding evidence, there must be aclear showing that the failure to comply with court-ordered discovery was willful andcontumacious" (Zakhidov vBoulevard Tenants Corp., 96 AD3d 737, 739 [2012]; see Arpino v F.J.F.& Sons Elec. Co., Inc., 102 AD3d at 210; Moog v City of New York, 30 AD3d 490, 490 [2006]).Here, the Supreme Court improvidently exercised its discretion in granting that branch ofthe hospital defendants' motion which was to conditionally preclude the plaintiffs fromintroducing evidence of the injured plaintiff's neurological injuries, since there was noclear showing that the injured plaintiff had willfully and contumaciously failed to appearfor a neuropsychological examination. Moreover, under the circumstances of this case, itcannot be said that the conduct of the plaintiffs or their attorney warranted the impositionof sanctions.
Furthermore, the Supreme Court improvidently exercised its discretion in denyingthat branch of the plaintiffs' motion which was for an extension of time for the injuredplaintiff to comply with the stipulation dated November 1, 2012, by appearing for aneuropsychological examination, since the plaintiffs demonstrated a reasonable excusefor the inability of the injured plaintiff to appear for an examination on or before the datedesignated in the stipulation, as well as the existence of a potentially meritorious cause ofaction. However, contrary to the plaintiffs' contentions, they failed to establish theexistence of such special and unusual circumstances that would warrant the audiotapingof the examination (see Cooperv McInnes, 112 AD3d 1120 [2013]; Savarese v Yonkers Motors Corp.,205 AD2d 463 [1994]).
The plaintiffs sought leave to amend their bill of particulars so as to slightly revisethe dates and times during which the hospital defendants and the defendant physicianJavier Roca allegedly engaged in conduct that constituted medical malpractice."Generally, in the absence of prejudice or surprise to the opposing party, leave to amenda bill of particulars should be freely granted unless 'the proposed amendment is palpablyinsufficient or patently devoid of merit' " (Rodgers v New York City Tr. Auth., 109 AD3d 535, 536[2013], quoting Delahaye vSaint Anns School, 40 AD3d 679, 684-685 [2007]). Where there is anunreasonable delay in seeking leave to amend, without excuse, and the motion for leaveto amend is made close to or on the eve of trial, it is an improvident exercise of discretionto grant the relief (see Navarettev Alexiades, 50 AD3d 869 [2008]). However, lateness alone is "not a barrier tothe amendment. It must be lateness coupled with significant prejudice to the other side"(Worthen-Caldwell v SpecialTouch Home Care Servs., Inc., 78 AD3d 822, 823 [2010]). In this case, theproposed amendment was first sought in September 2011. Since the hospital defendantsand Roca were aware of the plaintiffs' allegations well before the eve of trial, they werenot prejudiced by the amendment. Under the totality of the circumstances, the Supreme[*3]Court improvidently exercised its discretion indenying that branch of the plaintiffs' motion which was for leave to amend the bill ofparticulars (see Dickstein v Dogali, 303 AD2d 443 [2003]). Dillon, J.P.,Leventhal, Austin and Hinds-Radix, JJ., concur.