Viruet v. Mount Sinai Medical Center Inc.

Appellate Division of the Supreme Court of New York

Viruet v. Mount Sinai Medical Center Inc.

2016 NY Slip Op 6862, 143 A.D.3d 558, 38 N.Y.S.3d 896

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 20, 2016

Docket1903 104158/09

StatusPublished

Cited by1 cases

This text of 2016 NY Slip Op 6862 (Viruet v. Mount Sinai Medical Center Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Viruet v. Mount Sinai Medical Center Inc., 2016 NY Slip Op 6862, 143 A.D.3d 558, 38 N.Y.S.3d 896 (N.Y. Ct. App. 2016).

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Opinion

*559 Amended order, Supreme Court, New York County (Martin Shulman, J.), entered September 5, 2014, which, among other things, granted defendants the Mount Sinai Hospital, Ron Palmon, M.D., and Daniel Labow, M.D.’s motion to dismiss the action as a sanction for plaintiff’s failure to comply with discovery orders, unanimously modified, on the law and the facts, to reinstate the complaint in accordance with the conditions set forth in this order, and as so modified, affirmed, without costs.

Although plaintiff eventually, albeit belatedly, provided or addressed many of the outstanding items listed in Supreme Court’s fifth and final order of discovery, she still did not supplement the bill of particulars to articulate the basis for her malpractice claims or demand for special damages, even though five years had passed since the commencement of the action. She also failed to provide completed HIPAA authorization forms.

Nevertheless, “[s'Jtriking a party’s pleadings is a drastic sanction, and will generally be made only upon a clear showing that the party’s conduct was willful and contumacious” (CEMD El. Corp. v Metrotech LLC I, 141 AD3d 451, 453 [1st Dept 2016], citing Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 [1st Dept 2002]; Frye v City of New York, 228 AD2d 182 [1st Dept 1996]). The record shows that the 77-year-old plaintiff responded to many of defendants’ discovery demands, which were extensive, spanning 10 years of medical records and other documents. Under the circumstances of this medical malpractice case, dismissal of the action is too harsh a sanction at this point for plaintiff’s partial failure to comply with discovery orders (CPLR 3042 [d]; 3126).

We, therefore, modify to reinstate the complaint, direct plaintiff within 45 days of this order to pay a monetary sanction in the amount of $1,500, and afford plaintiff a final opportunity to supplement her bill of particulars and to provide compléte HIPAA authorizations (see 241 Fifth Ave. Hotel, LLC v GSY Corp., 110 AD3d 470, 472 [1st Dept 2013]).

Concur— Tom, J.P., Renwick, Manzanet-Daniels, Gische and Webber, JJ.

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*559 Amended order, Supreme Court, New York County (Martin Shulman, J.), entered September 5, 2014, which, among other things, granted defendants the Mount Sinai Hospital, Ron Palmon, M.D., and Daniel Labow, M.D.’s motion to dismiss the action as a sanction for plaintiff’s failure to comply with discovery orders, unanimously modified, on the law and the facts, to reinstate the complaint in accordance with the conditions set forth in this order, and as so modified, affirmed, without costs.

Although plaintiff eventually, albeit belatedly, provided or addressed many of the outstanding items listed in Supreme Court’s fifth and final order of discovery, she still did not supplement the bill of particulars to articulate the basis for her malpractice claims or demand for special damages, even though five years had passed since the commencement of the action. She also failed to provide completed HIPAA authorization forms.

Nevertheless, “[s'Jtriking a party’s pleadings is a drastic sanction, and will generally be made only upon a clear showing that the party’s conduct was willful and contumacious” (CEMD El. Corp. v Metrotech LLC I, 141 AD3d 451, 453 [1st Dept 2016], citing Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 [1st Dept 2002]; Frye v City of New York, 228 AD2d 182 [1st Dept 1996]). The record shows that the 77-year-old plaintiff responded to many of defendants’ discovery demands, which were extensive, spanning 10 years of medical records and other documents. Under the circumstances of this medical malpractice case, dismissal of the action is too harsh a sanction at this point for plaintiff’s partial failure to comply with discovery orders (CPLR 3042 [d]; 3126).

We, therefore, modify to reinstate the complaint, direct plaintiff within 45 days of this order to pay a monetary sanction in the amount of $1,500, and afford plaintiff a final opportunity to supplement her bill of particulars and to provide compléte HIPAA authorizations (see 241 Fifth Ave. Hotel, LLC v GSY Corp., 110 AD3d 470, 472 [1st Dept 2013]).

Concur— Tom, J.P., Renwick, Manzanet-Daniels, Gische and Webber, JJ.

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2016 NY Slip Op 6862, 143 A.D.3d 558, 38 N.Y.S.3d 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viruet-v-mount-sinai-medical-center-inc-nyappdiv-2016.

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