MOOG v. Staten Island University Hospital, et al., respondents. (2006)

In a consolidated action, inter alia, to recover damages for negligence and wrongful death, etc., the plaintiffs appeal, from so much of an order of the Supreme Court, Richmond County (Mega, J.), dated May 12, 2005, as denied those branches of their motion which were pursuant to CPLR 3126 to strike the answers of the defendants Staten Island University Hospital and Thyssenkrupp Elevator Corp., d/b/a Thyssen Dover Elevator.

ORDERED that the order is modified, on the law and as a matter of discretion, by deleting the provision thereof denying that branch of the motion which was to strike the answer of the defendant Staten Island University Hospital and substituting therefor a provision granting that branch of the motion to the extent that the defendant Staten Island University Hospital is precluded from offering evidence at trial that its employees attempted to open the elevator door at the time of the incident and otherwise denying that branch of the motion;  as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.

 “To invoke the drastic remedy of preclusion, the Supreme Court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious” (Assael v. Metropolitan Tr. Auth., 4 A.D.3d 443, 772 N.Y.S.2d 364;  see Pryzant v. City of New York, 300 A.D.2d 383, 750 N.Y.S.2d 779).   Here, the defendant Staten Island University Hospital (hereinafter the hospital) repeatedly failed to comply with discovery directives.   Moreover, it stated that the requested information had been fully disclosed when, in fact, it possessed additional relevant material which was not produced until more than three years after it was requested.   Although this conduct does not warrant striking the hospital's answer, under the circumstances, the hospital's conduct was sufficient to warrant preclusion (see Kelleher v. Mt. Kisco Med. Group, 264 A.D.2d 760, 761, 694 N.Y.S.2d 770;  Maillard v. Maillard, 243 A.D.2d 448, 449, 663 N.Y.S.2d 67).   The willful and contumacious character of the hospital's failure to respond to discovery demands can be inferred from its repeated failure to comply with the court's orders and inadequate excuses for the failure to comply (see Sowerby v. Camarda, 20 A.D.3d 411, 798 N.Y.S.2d 125;  Pryzant v. City of New York, supra;  cf. Lombardo v. St. Francis Hosp. Rehabilitation Services, 16 A.D.3d 385, 386, 790 N.Y.S.2d 405).

The plaintiffs' remaining contention is without merit.