Nubyahn v. Brookdale Univ. Hosp. & Med. Ctr.

Opinion

Nubyahn v Brookdale Univ. Hosp. & Med. Ctr.

2026 NY Slip Op 04957

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Merowe Nubyahn, appellant,

v

Brookdale University Hospital and Medical Center, et al., respondents, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-09326, (Index No. 10754/15)

Angela G. Iannacci, J.P.

William G. Ford

Lourdes M. Ventura

Susan Quirk, JJ.

G. Wesley Simpson, P.C., Brooklyn, NY, for appellant.

Barker Patterson Nichols LLP, Valhalla, NY (Bhalinder L. Rikhye of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated April 1, 2024. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was pursuant to CPLR 3126(2) to strike the answer of the defendants Brookdale University Hospital and Medical Center, Julio Rimarachim, Vinodha Nagesh, Rani Fritz, and "Dr. Nagf" and to preclude those defendants from offering evidence and testimony at trial.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In August 2015, the plaintiff commenced this medical malpractice action against, among others, the defendants Brookdale University Hospital and Medical Center, Julio Rimarachim, Vinodha Nagesh, Rani Fritz, and "Dr. Nagf" (hereinafter the defendants). During discovery, the defendants cross-moved for a protective order in response to certain discovery demands. In an order dated October 3, 2022, the Supreme Court, inter alia, denied the defendants' cross-motion and directed the defendants to respond to the subject discovery demands by a date certain (hereinafter the October 2022 order). The October 2022 order provided that failure to comply would result in preclusive sanctions "upon further motion for same, pursuant to CPLR 3126(2)." It is undisputed that the defendants' response to the subject discovery demands was not within the deadline set forth in the October 2022 order.

On November 9, 2023, the plaintiff, invoking the October 2022 order, moved, among other things, pursuant to CPLR 3126(2) to strike the defendants' answer and to preclude the defendants from offering evidence and testimony at trial. In an order dated April 1, 2024, the Supreme Court, inter alia, denied that branch of the plaintiff's motion. The plaintiff appeals.

"A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order" (Mention v Archbishop Stepinac High Sch., 223 AD3d 893, 894-895 [internal quotation marks omitted]). "When a litigant fails to comply with the terms of a conditional order of preclusion, the terms of that order become absolute" (Williams v Staten Is. Univ. Hosp., 241 AD3d 989, 991 [internal quotation marks omitted]).

Here, contrary to the plaintiff's contention, the October 2022 order was not a conditional order of preclusion "as it required an additional motion before any sanctions became absolute," and preclusion was therefore not automatic (Barua v IM Peculiar, Inc., 243 AD3d 861, 863; see Williams v Staten Is. Univ. Hosp., 241 AD3d at 991).

"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'" (Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1019, 1019, quoting CPLR 3126; see Korsinsky & Klein, LLP v FHS Consultants, LLC, 214 AD3d 961, 963). "However, the drastic remedy of striking a pleading or even precluding evidence pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious" (Korsinsky & Klein, LLP v FHS Consultants, LLC, 214 AD3d at 963 [internal quotation marks omitted]).

Here, as the record demonstrates only a "single incident of noncompliance with a court order," the plaintiff failed to make a clear showing that the defendants wilfully or contumaciously disobeyed the October 2022 order or acted in bad faith "to warrant a sanction as drastic as preclusion" (id. at 964 [internal quotation marks omitted]; see Williams v Staten Is. Univ. Hosp., 241 AD3d at 990). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answer and to preclude the defendants from offering evidence and testimony at trial.

The defendants' remaining contention need not be reached in light of our determination.

IANNACCI, J.P., FORD, VENTURA and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court