HENRY v. David Miller, M.D., et al., Defendants. (2018)

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered February 2, 2017, which, insofar as appealed from as limited by the briefs, denied in part defendant Lenox Hill Hospital's and defendant Iraj Akhavan, P.M.D.'s motions to enforce the conditional preclusion order and for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motions in full, and, as so modified, affirmed, without costs.  The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff failed to fully comply with the conditional preclusion order because she failed to provide the requisite specificity in her supplemental bill of particulars as to dates of confinement and special damages.  She also failed to demonstrate “a reasonable excuse for the failure to produce the requested items” and “the existence of a meritorious claim,” as required to obtain relief from the order (Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] ).  She should thus have been precluded from offering evidence of liability and damages at trial, as per the terms of the order (id.;  Jenkinson v. Naccarato, 286 A.D.2d 420, 420–421, 730 N.Y.S.2d 244 [2d Dept. 2001] ).

Because the result of precluding plaintiff from offering evidence on liability or damages at trial is that she will not be able to make out a prima facie case, the complaint should be dismissed (see Arzuaga v. Tejada, 133 A.D.3d 454, 455, 19 N.Y.S.3d 280 [1st Dept. 2015] ).