PAEZ v. MAIMONIDES MEDICAL CENTER LLC (2025)

Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

NYSCEF Doc. #s 98-103 by Def. Daria

NYSCEF Doc. #s 104-107 by Def. Maimonides

NYSCEF Doc. #s 108-111 by Def. Shorefront

NYSCEF Doc. #s 112-125 by Def. Kanner

NYSCEF Doc. #s 126-149 by Plaintiff

Upon the foregoing cited papers and after considering oral argument on January 28, 2025, the following Motions to Dismiss for Failure to Comply with Discovery are before the Court:

1. Defendant Daria Diakonova-Curtis, Ph.D.’s (“Daria”) Motion Seq. # 7;

2. Defendants Maimonides Medical Center, Michal Preis, M.D., and Victor Ligmay, M.D.’s (“Maimonides”) Motion Seq. # 8;

3. Defendant Shorefront Operating LLC d/b/a Seagate Rehabilitation and Nursing Center's (“Shorefront”) Motion Seq. # 9; and

4. Defendants Charles Kanner, M.D. and Mark Shif, M.D.’s (“Kanner”) Motion Seq. # 10.

Pursuant to CPLR § 3126, and based on Plaintiff's repeated failures to comply with court-ordered discovery, the Defendants’ motions to dismiss are GRANTED.

Under CPLR § 3126, a court may impose sanctions, including dismissal of a complaint, when a party refuses to obey an Order for disclosure or willfully fails to disclose information that ought to have been disclosed. The nature and degree of the penalty imposed is within the sound discretion of the trial court. Commisso v. Orshan, 85 AD3d 845, 845 (2d Dept. 2011). A court may strike a pleading when a party's noncompliance is determined to be willful and contumacious. Id. Willfulness may be inferred from a pattern of repeated failures to comply with discovery demands or court orders without an adequate excuse. Kihl v. Pfeffer, 94 NY2d 118, 123 (1999).

Here, the Plaintiff has failed to comply with multiple court-ordered discovery directives without providing a reasonable excuse. Plaintiff's conduct can be inferred as willful and contumacious. Plaintiff initially commenced an action against Defendants Maimonides by filing a Summons and Verified Complaint on June 2, 2017, under Index Number 510931/2017. Plaintiff later commenced the instant action against Defendants Shorefront, Daria, and Kanner by filing a Summons and Verified Complaint on January 30, 2022. These actions were consolidated under the instant Index Number by Court Order dated March 4, 2024.¹

Despite multiple directives, Plaintiff has failed to comply with discovery Orders dated August 13, 2019,² April 27, 2021,³ September 30, 2021,⁴ November 15, 2021,⁵ May 24, 2023,⁶ March 4, 2024,⁷ July 12, 2024,⁸ and the oral directive issued on January 14, 2025.⁹ While Plaintiff's current counsel was retained on December 6, 2022,¹⁰ the excuse of law office failure is not a reasonable justification for persistent noncompliance under these circumstances. See Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201 (2d Dept. 2012) (holding that a conclusory claim of law office failure does not constitute a reasonable excuse for noncompliance). Additionally, a substitution of counsel does not excuse a litigant's responsibility to comply with discovery obligations. See Galaxy Gen. Contracting Corp. v. 2201 7th Ave. Realty LLC, 95 AD3d 789, 791 (1st Dept. 2012).

Based on the totality of circumstances, the Court finds Plaintiff's conduct was willful and contumacious. As such, Defendants’ motions to dismiss (Mot. Seq. #s 7, 8, 9, & 10) are GRANTED, and the instant action is dismissed in its entirety with prejudice.

This constitutes the Decision and Order of the Court.

FOOTNOTES

1.   NYSCEF Doc. # 122.

2.   NYSCEF Doc. # 12 under Index # 510931/2017.

3.   NYSCEF Doc. # 20 under Index # 510931/2017.

4.   NYSCEF Doc. # 22 under Index # 510931/2017.

5.   NYSCEF Doc. # 25 under Index # 510931/2017.

6.   NYSCEF Doc. # 31 under Index # 510931/2017.

7.   NYSCEF Doc. # 122.

8.   NYSCEF Doc. # 124.

9.   On January 14, 2025, the court adjourned the instant motions to allow the Plaintiff to comply with the prior discovery orders.

10.   NYSCEF Doc. # 24.

Patria Frias-Colón, J.