Dimoulas v. Roca

• Decision Date: 17 September 2014
• Citation: Dimoulas v. Roca, 2014 NY Slip Op 6170, 993 N.Y.S.2d 56, 120 A.D.3d 1293 (N.Y. App. Div. 2014)
• Parties: Georgia DIMOULAS, et al., appellants, v. Javier ROCA, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 1293

993 N.Y.S.2d 56

2014 N.Y. Slip Op. 06170

Georgia DIMOULAS, et al., appellants,

v.Javier ROCA, etc., et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 17, 2014

Reversed. Bruce G. Clark & Associates, P.C., Port Washington, N.Y. (Diane C. Cooper of counsel), for appellants.

Wagner, Doman & Leto, P.C., Mineola, N.Y. (Nicholas J. Albenese, Jr., of counsel), for respondent Javier Roca.

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Eric B. Betron of counsel), for respondents New York Hospital Queens and Sidney Obas.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Queens County (O'Donoghue, J.), entered January 16, 2013, which granted the motion of the defendants New York Hospital Queens and Sidney Obas to conditionally preclude them from introducing, at trial, evidence of the neurological injuries sustained by the plaintiff Georgia Dimoulas and for the imposition of sanctions against her pursuant to 22 NYCRR 130–1.1(a) unless she appeared for a neuropsychological examination, as set forth in a so-ordered stipulation dated November 1, 2012, and (2) an order of the same court entered March 11, 2013, which denied their motion, in effect, for the plaintiff Georgia Dimoulas to comply with the so-ordered stipulation by appearing for the neuropsychological examination, and for leave to amend their bill of particulars.

ORDERED that the orders are reversed, on the law, on the facts, and in the exercise of discretion, with one bill of costs to the plaintiffs, payable by the respondents appearing separately and filing separate briefs, the motion of the defendants New York Hospital Queens and Sidney Obas to conditionally preclude the plaintiffs from introducing, at trial, evidence of the neurological injuries sustained by the plaintiff Georgia Dimoulas and for the imposition of sanctions against her pursuant to 22 NYCRR 130–1.1(a) unless she appeared for a neuropsychological examination, as set forth in a so-ordered stipulation dated November 1, 2012, is denied, the plaintiffs' motion, in effect, for an extension of time for the plaintiff Georgia Dimoulas to comply with the so-ordered stipulation by appearing for the neuropsychological examination, and for leave to amend their bill of particulars, is granted, and the plaintiffs' time to schedule the examination of the plaintiff Georgia Dimoulas and to serve an amended bill of particulars is extended until 60 days after service upon the plaintiffs of a copy of this decision and order.

The injured plaintiff, Georgia Dimoulas, appeared on October 8, 2012, with her attorney for a neuropsychological examination that was to be conducted by a physician retained jointly by New York Hospital Medical Center Queens, sued herein as New York Hospital Queens, and the defendant Sidney Obas, a physician's assistant (hereinafter together the hospital defendants). However, the examination was terminated early when the retained physician would not allow the plaintiffs' attorney to audiotape the examination. While the hospital defendants' subsequent motion to preclude the plaintiffs from offering any evidence of her neurological injuries and for the imposition of sanctions was pending, the parties entered into a so-ordered stipulation dated November 1, 2012, pursuant to which the plaintiff was directed to appear for a second time at an examination no later than January 7, 2013.

In an order dated January 7, 2013, and entered January 16, 2013, the Supreme Court conditionally granted the hospital defendants' motion unless the injured plaintiff appeared for an examination, as set forth in the so-ordered stipulation dated November 1, 2012—that is, on January 7, 2013, the same date as the order. The plaintiffs moved for an extension of time for the injured plaintiff to comply with the so-ordered stipulation by appearing for a neuropsychological examination, and for leave to amend the bill of particulars. In an order entered March 11, 2013, the Supreme Court denied the plaintiffs' motion.

“The Supreme Court has broad discretion in making determinations concerning matters of disclosure, including the nature and degree of the penalty to be imposed under CPLR 3126” ( Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 209, 959 N.Y.S.2d 74 [citation omitted]; see Roug Kang Wang v. Chien–Tsang Lin, 94 A.D.3d 850, 941 N.Y.S.2d 717). Howeve...