Dziegielewski v. Advanced Integrative Wellness, LLC, 2010 NY Slip Op 30811(U) (N.Y. Sup. Ct. 3/9/2010)

• Decision Date: 09 March 2010
• Docket Number: 18467/06.,Motion Sequence: 006.,Motion Sequence: 005.
• Citation: 2010 NY Slip Op 30811
• Parties: CAROLYN DZIEGIELEWSKI, Plaintiff(s), v. ADVANCED INTEGRATIVE WELLNESS, LLC, d/b/a HEALTHBRIDGE MEDICAL ASSOCIATE, P.C., HEALTHBRIDGE MEDICAL ASSOCIATE, P.C., ELYSIUM DAY SPA, and DYNATRONICS, INC., Defendant(s).
• Court: New York Supreme Court

Page 1

2010 NY Slip Op 30811(U)

CAROLYN DZIEGIELEWSKI, Plaintiff(s), v. ADVANCED INTEGRATIVE WELLNESS, LLC, d/b/a HEALTHBRIDGE MEDICAL ASSOCIATE, P.C., HEALTHBRIDGE MEDICAL ASSOCIATE, P.C., ELYSIUM DAY SPA, and DYNATRONICS, INC., Defendant(s).

18467/06.

Motion Sequence: 005.

Motion Sequence: 006.

Supreme Court, Nassau County.

March 9, 2010.

Motion Submitted: February 4, 2010.

KAREN V. MURPHY, Judge.

This motion by the defendants Advanced Integrative Wellness, LLC d/b/a Healthbridge Medical Associates, P.C, and Healthbridge Medical Associates, P.C, for an order pursuant to CPLR §§ 3124, 3126 striking the plaintiff Carolyn Dziegielewski's complaint or, in the alternative, an order pursuant to CPLR §§ 3124, 3126 striking the first cause of action and precluding the plaintiff from offering evidence at trial regarding her medical treatment and alleged physical injuries and an order awarding them costs and attorneys fees is determined as provided herein.

This motion by the defendant Dynatronics, Inc. for an order pursuant to CPLR §§ 3124, 3126 striking the plaintiff Carolyn Dziegielewski's complaint is determined as provided herein.

In this action, the plaintiff seeks to recover for negligence/res ipsa loquitur, statutory fraud and false advertising pursuant to General Business Law §§ 349, 350 and common law fraud for injuries she allegedly sustained, specifically, chronic myofascial pain syndrome, numbness and tingling in her lower extremities, insomnia, depression, anxiety and Synergie cellulite reduction as a result of her treatment at Elysium Day Spa with Dynatronics' product, a Synergie AMS device.

In this court's July 22, 2008 order, the plaintiff was directed to: (1) provide a verification for her response to Dynatronic's Demand for a Bill of Particulars within 20 days; (2) to respond to or supplement her responses to Items No. 12, 23, 24, 27, 28 and 29 of Dynatronics' Demand for a Bill of Particulars; (3) to provide a verification for her responses to Advanced Integrative Wellness, LLC, d/b/a Healthbridge Medical Associates, P.C., and Healthbridge Medical Associates, P.C.'s demand for a Bill of Particulars within 20 days; (4) to respond to or supplement her responses to Items No. 4, 6, 11, 12, 17, 18, 22, 23, 24, 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 of Advanced Integrative Wellness, LLC, d/b/a Healthbridge Medical Associates, P.C, and Healthbridge Medical Associates, P.C's Demand for a Bill of Particulars; (5) "to identify each and every health care provider and drug store she has visited since her last treatment at Elysium Day Spa, identify the conditions she was being treated for and to provide HIPPA complaint authorizations for each one; (6) to provide authorizations for her records at other health or alternative medicine facilities that she has gone to since 2001; (7) to respond to or supplement her responses to Demands 20, 21, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 47, 48 and 55 of Advanced Integrative Wellness, LLC, d/b/a Healthbridge Medical Associates, P.C, and Healthbridge Medical Associates, P.C.'s Notice of Discovery and Inspection; and, (8) to produce or make available for inspection documents responsive to Demand 25 of Advanced Integrative Wellness, LLC, d/b/a Healthbridge Medical Associates, P.C., and Healthbridge Medical Associates, P.C.'s First Notice for Discovery and Inspection within 20 days. That order cautioned that "[i]f plaintiff fails to supplement the Bills of Particulars and to otherwise comply with court orders, she will be precluded from offering evidence at trial as to those matters."

By these applications the defendants seek to, inter alia, strike the plaintiffs complaint based upon the plaintiffs alleged failure to comply with those directives.

In Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 722 N.E.2d 55, 700 N.Y.S.2d 87 (1999), the Court of Appeals cautioned "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity." Furthermore, the court underscored "that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully." (Kihl v. Pfeffer, supra, at p. 123, quoting CPLR § 3126). Although striking a pleading is a drastic remedy, it is warranted when a party's failure to comply with discovery demands was willful and/or contumacious. (Northfield Ins. Co. v. Model Towing and Recovery, 63 A.D.3d 808, 809, 881 N.Y.S.2d 135 (2d Dept., 2009); citing Frias v. Fortini, 240 A.D.2d 467, 658 N.Y.S.2d 435 (2d Dept., 1997); Novis v. Benes, 268 A.D.2d 464, 701 N.Y.S.2d 914 [2d Dept., 2000]).

When unable to produce documents, a party must set forth where the records were kept, what efforts, if any, were made to preserve them and the circumstances surrounding their disappearance or destruction. (Jackson v. City of New York, 185 A.D.2d 768, 770, 586 N.Y.S.2d 952 [1^st Dept., 1992]). A basis for a finding of good faith should also be set forth. (Jackson v. City of New York, supra, at p. 770). "It can be inferred that a party's conduct is willful and contumacious when it repeatedly fails to comply with discovery demands and court orders compelling disclosure without providing a reasonable excuse for noncompliance." (Northfield Ins. Co. v. Model Towing and Recovery, supra at p. 809, citing Mei Yan Zhang v. Santana, 52 A.D.3d 484, 485, 860 N.Y.S.2d 129 (2d Dept., 2008); Dinstber v. Geico Ins. Co., 32 A.D.3d 893, 820 N.Y.S.2d 804 (2d Dept., 2006), lv den., 8 N.Y.3d 810 (2007), cert den., 522 U.S. 956 (2007); Kroll v. Parkway Plaza Joint Venture, 10 A.D.3d 633, 781 N.Y.S.2d 613 (2d Dept., 2004); Ordonez v. Guerra, 295 A.D.2d 325, 743 N.Y.S.2d 156 (2d Dept., 2002), lv den., 99 N.Y.2d 507 (2003); Cuotolo v. Khalife, 242 A.D.2d 661, 664 N.Y.S.2d 939 (2d Dept., 1997); Frias v. Fortini, supra; Kubacka v. Town of North Hempstead, 240 A.D.2d 374, 657 N.Y.S.2d 770 [2d Dept., 1997]). Substantially tardy responses do not warrant drastic relief absent underlying willful contumacious conduct. (See, Mawson v. Historic Properties, LLC, 30 A.D.3d 480, 817 N.Y.S.2d 364 (2d Dept., 2006), citing Lombardo v. St. Francis Hosp. Rehabilitation Servs., 16 A.D.3d 385, 790 N.Y.S.2d 405 (2d Dept., 2005); Centerport Ins. Agency, Inc. v. Atlantic Fabricators of Rhode Island, Inc., 277 A.D.2d 414, 715 N.Y.S.2d 908 (2d Dept, 2000); Vancott v. Great Atlantic & Pacific Tea Co. Inc., 211 A.D.2d 438, 705 N.Y.S.2d 640 [2d Dept, 2000]). Indeed "[t]he drastic remedy of striking a pleading must be supported by a clear showing that there was a failure to comply with discovery demands and that such failure was willful and contumacious." (Step-Murphy, LLC v. B & B Bros. Real Estate Corp., 60 A.D.3d 841, 875 N.Y.S.2d 535 (2d Dept., 2009), citing Nieves v. City of New York, 35 A.D.3d 557, 558, 826 N.Y.S.2d 647 (2d Dept., 2006); Brandes v. North Shore Univ. Hosp., 22 A.D.3d 778, 803 N.Y.S.2d 204 (2d Dept., 2005); Jenkins v. City of New York, 13 A.D.3d 342, 788 N.Y.S.2d 117 [2d Dept., 2004]). "Similarly, preclusion is also warranted only when `the offending party's lack of cooperation with disclosure was willful, deliberate and contumacious.'" (Assael v. Metropolitan Transit Authority, 4 A.D.3d 443, 772 N.Y.S.2d 364 (2d Dept, 2004), quoting Pryzant v. City of New York, 300 A.D.2d 383, 750 N.Y.S.2d 779 (2d Dept., 2002), citing Patterson v. New York City Health and Hospitals Corp., 284 A.D.2d 516, 726 N.Y.S.2d 715 (2d Dept., 2004); Cianciolo v. Trism Specialized Carriers, 274 A.D.2d 369 370, 711 N.Y.S.2d 441 (2d Dept., 2000); Kelleher v. Mt. Kisco Medical Group, P.C., 264 A.D.2d 760, 694 N.Y.S.2d 770 [2d Dept., 1999]). This state's policy strongly favors the resolution of matters on the merits. (Byam v. City of New York, 68 A.D.3d 798, 890 N.Y.S.2d 612 (2d Dept., 2009); Maiorino v. City of New York, 39 A.D.3d 601, 834 N.Y.S.2d 272 (2d Dept., 2007); Cruzatti v. St. Mary's Hosp., 193 A.D.2d 579, 597 N.Y.S.2d 457 [2d Dept., 1993]).

Money sanctions in the form of costs and...