Lynette Pascall, respondent, v. LLC (2026)

Submitted—January 6, 2026

DECISION & ORDER

M/

In an action to recover damages for personal injuries, the defendants appeal from (1) an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated November 25, 2024, and (2) an order of the same court dated March 13, 2025.  The order dated November 25, 2024, adjourned the return date of the defendants' motion pursuant to CPLR 3126 to strike the complaint or, in the alternative, to preclude the plaintiff from offering evidence on the issues of liability and damages at trial or in connection with a dispositive motion.  The order dated March 13, 2025, insofar as appealed from, granted the defendants' motion pursuant to CPLR 3126 to strike the complaint or, in the alternative, to preclude the plaintiff from offering evidence on the issues of liability and damages at trial or in connection with a dispositive motion only to the extent of precluding the plaintiff from offering evidence at trial as to those medical providers for which HIPAA-compliant authorizations had been requested but not produced, unless such authorizations were produced by April 18, 2025.

ORDERED that the appeal from the order dated November 25, 2024, is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a][2] ), and leave to appeal has not been granted (see id. § 5701[c] );  and it is further,

ORDERED that the order dated March 13, 2025, is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting the defendants' motion pursuant to CPLR 3126 to strike the complaint or, in the alternative, to preclude the plaintiff from offering evidence on the issues of liability and damages at trial or in connection with a dispositive motion to the extent of precluding the plaintiff from offering evidence at trial as to those medical providers for which HIPAA-compliant authorizations had been requested but not produced, unless such authorizations were produced by April 18, 2025, and substituting therefor a provision granting the motion to the extent of striking the complaint unless the plaintiff furnishes those authorizations that were not previously provided to the defendants within 60 days of the date of service upon the plaintiff of a copy of this decision and order with notice of entry;  as so modified, the order dated March 13, 2025, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

In 2019, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained inside her apartment, which was located on premises owned and managed by the defendants.  The defendants served their initial discovery demands in May 2020, requesting HIPAA-compliant authorizations for the release of records from the plaintiff's medical providers.  Following the plaintiff's deposition, the defendants served additional discovery demands in November 2023.  The defendants subsequently moved, inter alia, pursuant to CPLR 3126 to strike the complaint for failure to comply with discovery demands or, in the alternative, to preclude the plaintiff from offering evidence on the issues of liability and damages at trial or in connection with a dispositive motion or, in the alternative, to compel the plaintiff to provide outstanding discovery.  In an order dated August 5, 2024, the Supreme Court, among other things, directed the plaintiff to provide outstanding authorizations “for her diabetes treatments, from 2007 to present,” as demanded in the November 2023 discovery demands.  The court also directed the plaintiff to provide the authorizations by October 11, 2024, and stated that “[f]ailure to comply will be considered wilful and contumacious and grounds for dismissal of the complaint upon further motion.”

Thereafter, the defendants moved pursuant to CPLR 3126 to strike the complaint for failure to comply with court-ordered discovery or, in the alternative, to preclude the plaintiff from offering evidence on the issues of liability and damages at trial or in connection with a dispositive motion.  In opposition to the motion, the plaintiff indicated that she had recently mailed to the defendants her response to their discovery demands.  In an order dated November 25, 2024, the Supreme Court adjourned the return date of the defendants' motion to December 11, 2024.  Upon confirmation by the defendants of their receipt of the plaintiff's mailed discovery response, the court issued an order dated March 13, 2024, granting the defendants' motion to the extent of precluding the plaintiff from offering evidence at trial as to those providers for which HIPAA-compliant authorizations had been requested but not produced, unless such authorizations were produced by April 18, 2025.  The defendants appeal.

“There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” (CPLR 3101[a] ).  Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.”  The nature and degree of the penalty to be imposed under CPLR 3126 is a matter generally left to the court's discretion (see Lurie v. Lurie, 226 AD3d 992, 996–997;  Nationstar Mtge., LLC v. Jackson, 192 AD3d 813, 815).

“Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct” (Nationstar Mtge., LLC v. Jackson, 192 AD3d at 815;  see Moog v. City of New York, 30 AD3d 490, 490).  “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, and the absence of a reasonable excuse for these failures, or by the failure to comply with court-ordered discovery over an extended period of time” (Ferjuste v. 437 BMW, LLC, 219 AD3d 1308, 1309 [internal quotation marks omitted];  see Nationstar Mtge., LLC v. Jackson, 192 AD3d at 815–816).

“A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order” (White v. Bical Dev., Inc., 229 AD3d 586, 587 [internal quotation marks omitted];  see Gibbs v. St. Barnabas Hosp., 16 NY3d 74, 79).  “When a litigant fails to comply with the terms of a conditional order of preclusion, the terms of that order become absolute” (White v. Bical Dev., Inc., 229 AD3d at 587 [internal quotation marks omitted] ).  To be relieved of the adverse impact of a conditional order of preclusion once it becomes absolute, a plaintiff must “demonstrate a reasonable excuse for failing to comply with the conditional order and a potentially meritorious cause of action” (Martin v Dormitory Auth. of the State of N.Y., 208 AD3d 576, 578).

Here, the Supreme Court providently exercised its discretion in declining to strike the complaint.  Contrary to the defendants' contention, the order dated August 5, 2024, was not a conditional order of preclusion, “as it required an additional motion before any sanctions became absolute” (Barua v. IM Peculiar, Inc., 243 AD3d 861, 863;  see Williams v. Staten Is. Univ. Hosp., 241 AD3d 989, 990–991;  Degachi v. Faridi, 230 AD3d 634, 635).  While we do not condone the plaintiff's extended delay in furnishing the requested authorizations, given the plaintiff's substantial compliance with the voluminous discovery requests, we agree that “ ‘the draconian measure of unconditional dismissal’ was not warranted” at that time (Khoshayev v. Edelstein, 243 AD3d 773, 774, quoting Greer v. Garito, 27 AD3d 617, 619).

However, the Supreme Court improvidently exercised its discretion in granting the defendants' motion only to the extent of precluding the plaintiff from offering evidence at trial as to those providers for which authorizations had been requested but not produced.  “Although the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court, ‘the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse’ ” (Jordan v. New York City Hous. Auth., 234 AD3d 829, 830 [citation omitted], quoting Harris v. City of New York, 117 AD3d 790, 791;  see Jurlina v. Town of Brookhaven, 215 AD3d 936, 937;  Household Fin. Realty Corp. of N.Y. v Cioppa, 153 AD3d 908, 910).

Here, the plaintiff's dilatory tactics necessitated numerous discovery motions.  The record demonstrates that these specific demands for authorizations remained outstanding at the time the defendants' motion was decided:  Edith Knight (demand no. 14), Dr. Patterson (diabetes specialist) (demand no. 49), and Coconut Grove and Little Hearts (demand nos. 55 and 56).  Moreover, this Court is unable to discern, based on this record, whether the discovery provided is sufficient for the defendants to litigate their proximate cause defense based upon the plaintiff's preexisting diabetes.  Therefore, under the circumstances of this case, the more appropriate sanction at that time would have been a self-executing conditional order, where failure to provide the requested authorizations would result in the striking of the complaint.  At that point, any further delay on behalf of the plaintiff supported an inference that her conduct was willful and contumacious.

Accordingly we modify the order dated March 13, 2025, and conditionally impose the sanction that upon the plaintiff's failure to provide authorizations for Edith Knight (demand no. 14), Dr. Patterson (diabetes specialist) (demand no. 49), and Coconut Grove and Little Hearts (demand nos. 55 and 56) within 60 days of the date of service upon the plaintiff of a copy of this decision and order with notice of entry, to the extent not already provided, the complaint will be stricken.

GENOVESI, J.P., CHRISTOPHER, WARHIT and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court