SAINT CLOUD v. KOEHLER (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Consuelo Mallafre Melendez, J.), dated April 4, 2023.  The order denied the plaintiff's motion, in effect, for summary judgment on the issue of liability and to strike the defendants’ answers.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

In July 2019, the plaintiff commenced this action, inter alia, to recover damages for medical malpractice.  By order dated August 2, 2022, the Supreme Court, among other things, directed that the defendants appear for examinations before trial on or before October 18, 2022, and stated that “[f]ailure to comply with this order will result in the non-complying party being precluded from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion, upon further motion for same, pursuant to CPLR 3126(2).”  However, on or about October 3, 2022, the deposition of the defendant Steven Koehler was scheduled for November 8, 2022, which was beyond the October 18, 2022 deadline.

On November 4, 2022, the plaintiff moved, in effect, for summary judgment on the issue of liability and to strike the defendants’ answers.  By order dated April 4, 2023, the Supreme Court denied the plaintiff's motion in its entirety.  The plaintiff appeals.

“ ‘Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court’ ” (Farrell v. Keldiyarov, 234 A.D.3d 933, 934, 227 N.Y.S.3d 182, quoting Madonna Mgt. Servs., Inc. v. R.S. Naghavi, M.D., PLLC, 172 A.D.3d 845, 847, 101 N.Y.S.3d 340).  Contrary to the plaintiff's contention, the order dated August 2, 2022, was not a self-executing order of preclusion but, instead, expressly required an additional motion pursuant to CPLR 3126(2) (see Degachi v. Faridi, 230 A.D.3d 634, 635, 217 N.Y.S.3d 190).  Moreover, “ ‘[b]efore a court invokes the drastic remedy of striking a pleading, or even of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious’ ” (Wanliss v. Retina Assoc. of N.Y., P.C., 230 A.D.3d 1270, 1271, 219 N.Y.S.3d 350 [internal quotation marks omitted], quoting Household Fin. Realty Corp. of N.Y. v. Cioppa, 153 A.D.3d 908, 910, 61 N.Y.S.3d 259;  see Zavala v. Rennew Holding Corp., 219 A.D.3d 787, 789, 194 N.Y.S.3d 574).  Here, the plaintiff failed to establish that the delay in the scheduling of depositions was the result of willful and contumacious conduct on the part of the defendants (see Wanliss v. Retina Assoc. of N.Y., P.C., 230 A.D.3d at 1271, 219 N.Y.S.3d 350;  Sokolnik v. Voronova, 221 A.D.3d 1036, 1038, 202 N.Y.S.3d 152).

Turning to the question of whether the plaintiff was entitled to summary judgment on the issue of liability on the merits, in order to establish prima facie entitlement to judgment as a matter of law in a medical malpractice action, the plaintiff was required to present expert evidence of a deviation from accepted standards of medical care which was a proximate cause of the plaintiff's injuries (see Hudler v. Reddy, 226 A.D.3d 654, 656, 208 N.Y.S.3d 273;  Navarro v. Ortiz, 203 A.D.3d 834, 836, 163 N.Y.S.3d 257;  Pieter v. Polin, 148 A.D.3d 1193, 1194, 50 N.Y.S.3d 509).  Here, the plaintiff failed to present such evidence.  Accordingly, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability on the merits, without regard to the sufficiency of the opposing papers (see Buzeska v. Crystal Run Healthcare Physicians, LLP, 234 A.D.3d 656, 659, 224 N.Y.S.3d 531;  Woehrle v. Buono, 232 A.D.3d 820, 821, 221 N.Y.S.3d 215).

In view of the foregoing, the Supreme Court properly denied the plaintiff's motion, in effect, for summary judgment on the issue of liability and to strike the defendants’ answers.

BARROS, J.P., CHRISTOPHER, WAN and TAYLOR, JJ., concur.