Negro v. St. Charles Hospital and Rehabilitation Center
| Decision Date | 09 October 2007 |
| Docket Number | 2006-05236.,2006-07329. |
| Citation | 2007 NY Slip Op 07674,44 A.D.3d 727,843 N.Y.S.2d 178 |
| Parties | BETTY NEGRO, Appellant, v. ST. CHARLES HOSPITAL AND REHABILITATION CENTER et al., Defendants, and NEIL KURTZ, Respondent. |
| Court | New York Supreme Court — Appellate Division |
v.
ST. CHARLES HOSPITAL AND REHABILITATION CENTER et al., Defendants, and NEIL KURTZ, Respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Weber, J.), entered May 3, 2006, which granted that branch of the motion of the defendant Neil Kurtz which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3126 for failure to comply with disclosure orders, and (2) an order of the same court entered July 10, 2006, which denied her motion for leave to renew and reargue.
Ordered that the appeal from the order entered July 10, 2006, is dismissed, without costs or disbursements; and it is further,
Ordered that the order entered May 3, 2006, is reversed, on the facts and in the exercise of discretion, on the law, without costs or disbursements, and that branch of the motion of the defendant Neil Kurtz which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3126 for failure to comply with disclosure orders is denied on condition that the plaintiff's attorneys personally pay the sum of $5,000 to the defendant Neil Kurtz within 30 days after service upon him of a copy of this decision and order; in the event the plaintiff's attorneys fail to pay, the appellant may personally pay the sum of $5,000 to the defendant Neil Kurtz within 60 days after service upon her of a copy of this decision and order; in the event the condition is not complied with, then the order is affirmed insofar as appealed from, with costs to the respondent.
The plaintiff commenced this action, inter alia, to recover damages for medical malpractice. The defendant Dr. Neil Kurtz, moved, among other things, to dismiss the complaint insofar as asserted against him pursuant to CPLR 3126 based on the plaintiff's failure to comply with disclosure orders. The Supreme Court granted such relief. We reverse.
Strong public policy favors the resolution of cases on the merits (see Gillen v Utica First Ins. Co., 41 AD3d 647 [2007]; Eckna v Kesselman, 11 AD3d 507 [2004]). However, CPLR 3126 authorizes the imposition of disclosure sanctions, including the striking of all or a portion of a pleading, where a party "refuses...
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