ROSENBLATT v. FRANKLIN HOSPITAL MEDICAL CENTER (2018)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered November 14, 2016.  The order granted the defendant's motion pursuant to CPLR 3126 to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In 2007, the plaintiff Angelica Pattishaw brought her grandson, for whom she served as legal guardian, to the emergency room of the defendant, Franklin Hospital Medical Center.  The child was discharged the same day and died at home five days later.  In 2009, the plaintiffs commenced this action, inter alia, to recover damages for medical malpractice.  In 2015, the defendant served a demand to prosecute pursuant to CPLR 3216, and the plaintiffs moved to extend their time to file a note of issue.  In an order dated April 6, 2016, the Supreme Court granted the plaintiffs' motion and directed, among other things, that Pattishaw appear for a deposition on or before May 27, 2016.  Pattishaw did not appear on or before that date, and on or about July 21, 2016, the defendant moved pursuant to CPLR 3126 to dismiss the complaint.  The court granted the motion, and the plaintiffs appeal.

Pursuant to CPLR 3126, “[i]f a party refuses to obey an order for disclosure or willfully fails to disclose information, the court may dismiss the action” (Corex–SPA v. Janel Group of N.Y., Inc., 156 A.D.3d 599, 601, 66 N.Y.S.3d 509;  see CPLR 3126[3] ).  Since public policy strongly favors the resolution of actions on the merits, the remedy of dismissal is “only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious” (Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 210, 959 N.Y.S.2d 74;  see Corex–SPA v. Janel Group of N.Y., Inc., 156 A.D.3d at 601, 66 N.Y.S.3d 509).  “The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders” (Flynn v. City of New York, 101 A.D.3d 803, 805, 955 N.Y.S.2d 637;  see Montemurro v. Memorial Sloan–Kettering Cancer Ctr., 94 A.D.3d 1066, 942 N.Y.S.2d 623).

Here, the plaintiffs' willful and contumacious conduct can be inferred from their repeated failures—over an extended period of time and without an adequate excuse—to produce a supplemental bill of particulars and HIPAA-compliant authorizations and to schedule Pattishaw's deposition, including before the April 6, 2016, order and up until the defendant moved to dismiss the complaint at the end of July 2016.  Under these circumstances, the Supreme Court did not improvidently exercise its discretion in determining that the penalty of dismissal was warranted (see Brandenburg v. County of Rockland Sewer Dist. # 1, State of N.Y., 127 A.D.3d 680, 6 N.Y.S.3d 570;  Flynn v. City of New York, 101 A.D.3d at 805, 955 N.Y.S.2d 637;  Montemurro v. Memorial Sloan–Kettering Cancer Ctr., 94 A.D.3d at 1066, 942 N.Y.S.2d 623;  Quinones v. Long Is. Jewish Med. Ctr., 90 A.D.3d 632, 633, 933 N.Y.S.2d 907).

MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.