Geltman v. St. Agnes Hosp.

• Decision Date: 05 October 1992
• Citation: 588 N.Y.S.2d 356,186 A.D.2d 534
• Parties: Gail GELTMAN, Appellant, v. ST. AGNES HOSPITAL, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 356

588 N.Y.S.2d 356

186 A.D.2d 534

Gail GELTMAN, Appellant, v. ST. AGNES HOSPITAL, Respondent.

Supreme Court, Appellate Division, Second Department.

Oct. 5, 1992.

Healy & Baillie, New York City (Philip S. LaPenta and Kevin Walters, of counsel), for appellant.

Rende, Ryan & Downes, White Plains (Wayne M. Rubin, of counsel), for respondent.

Before THOMPSON, J.P., and SULLIVAN, BALLETTA and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Delaney, J.), dated July 30, 1990, which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3126.

ORDERED that the order is affirmed, with costs.

Although it has been held that monetary sanctions are preferred over dismissal (see, Rosner v. Blue Channel Corp., 131 A.D.2d 654, 516 N.Y.S.2d 736), it has also been held that where a party frustrates attempts at disclosure through deliberate and contumacious acts, dismissal is proper (see, DeMasi v. Dine, 155 A.D.2d 583, 548 N.Y.S.2d 32; see also, Lobo Equities v. North Riv. Ins. Co., 124 A.D.2d 647, 508 N.Y.S.2d 33). In spite of the repeated requests and orders directing the plaintiff to involve herself in pretrial disclosure, she did not. Accordingly, the complaint was properly dismissed pursuant to CPLR 3126.