Sawh v. Bridges

CourtNew York Supreme Court — Appellate Division
Writing for the CourtBefore LAZER; THOMPSON; BRACKEN; LAZER
Citation120 A.D.2d 74,507 N.Y.S.2d 632
Decision Date27 October 1986
PartiesMary Ellen SAWH, Appellant, v. George BRIDGES, et al., Respondents.

Page 632

507 N.Y.S.2d 632
120 A.D.2d 74
Mary Ellen SAWH, Appellant,
v.
George BRIDGES, et al., Respondents.
Supreme Court, Appellate Division,
Second Department.
Oct. 27, 1986.

Page 633

Morris J. Eisen, P.C., Mineola (J. Irwin Shapiro and Kenneth L. Gartner, of counsel), for appellant.

Raymond G. Lawlor, New York City (David S. Heller, of counsel), for respondent George Bridges.

John F. Feeley, New York City (Thomas E. Paterson, of counsel), for respondents Gene Bove and Anne Marie Messerole.

Before LAZER, J.P., and THOMPSON, BRACKEN, WEINSTEIN and RUBIN, JJ.

THOMPSON, Justice.

The issue presented for our determination on this appeal is whether Special Term abused its discretion by imposing the harsh sanction of dismissal for the plaintiff's failure to comply with certain orders of disclosure. We find that the conduct of the plaintiff's counsel in failing to permit discovery and inspection of a CAT scan of the plaintiff despite a notice for production and two prior court orders with respect thereto can properly be characterized as willful and contumacious. Accordingly, dismissal of the complaint was a proper exercise of discretion and the order appealed from should be affirmed.

The instant action was commenced to recover damages for personal injuries sustained by the plaintiff as a result of a three-vehicle collision which occurred on Hyland Boulevard in Staten Island on June 24, 1981. In 1982 the plaintiff came under the care of Dr. Joseph Mormino, a neurosurgeon, who performed a CAT scan of her lower back and diagnosed the plaintiff's condition as a herniated lumbar disc. Dr. Mormino submitted a report dated June 17, 1983, to the plaintiff's counsel in which he advised that the "CAT Scan of the lumbosacral spine revealed a calcified herniated disc at L3-L4".

On September 19, 1983 a neurological examination of the plaintiff was performed by a second physician, Dr. Ralph A. Olson, at the request of the defendant George Bridges. Dr. Olson concluded that there were "insufficient findings to indica any spinal nerve root compression signs to indicate a symptomatic herniated disc in the lumbar area". He further stated that the calcified herniated disc allegedly revealed by the CAT scan indicated "a long-standing lesion antedating the date of accident". Dr. Olson recommended, inter alia, that the CAT scan referred to by Dr. Mormino be forwarded to his office for evaluation.

Thereafter, the defendant Bridges served upon the plaintiff a notice for discovery and inspection of the CAT scan taken by Dr. Mormino (see, CPLR 3120[a][1][i]). The plaintiff was directed to comply within 30 days. Receiving no response, counsel for the defendant Bridges, by letter dated November 8, 1983, advised the plaintiff's counsel that he was in default in complying with the notice to furnish the CAT scan. Rather than complying with the notice, the plaintiff's counsel proceeded to serve and file a note of issue and statement of readiness in which he falsely stated that all discovery proceedings had been completed. As a result, the defendant Bridges moved to strike the action from the trial calendar (22 NYCRR former 675.3 and 675.4). By order dated February 27, 1984, Special Term (Kuffner, J.), granted the defendant Bridges' motion to the extent, inter alia, of directing the plaintiff to supply the defendant Bridges with the CAT scan. A copy of the order with notice of entry was served upon the plaintiff on March 6, 1984.

Page 634

Upon the plaintiff's continued failure to comply with the notice and the order of February 27, 1984, the defendant Bridges, joined by the defendants Gene Bove and Anne Marie Messerole, again moved to strike the action from the trial calendar. The plaintiff's counsel in his affirmation in opposition to the motion alleged that an authorization for release of the CAT scan was being served upon the defendant Bridges' attorney simultaneously therewith even though the February 27, 1984, order had required the plaintiff to produce the actual CAT scan.

By order dated May 29, 1984, Special Term (Kuffner, J.) granted the defendants' motion to strike the action from the trial calendar in order to permit the defendants Messerole and Bove to have the plaintiff examined by a physician chosen by them. Apparently the court determined that the authorization with respect to the CAT scan which the plaintiff's counsel alleged he had served constituted sufficient compliance with its prior order. A copy of the order was served upon the plaintiff on June 11, 1984.

The defendant Bridges' attorney, by letter dated August 2, 1984, again demanded the CAT scan, citing in support thereof the orders of February 27, 1984, and May 29, 1984, and stating that failure to comply with the demand would compel him to move to preclude or to dismiss.

Finally, by notice of motion dated August 28, 1984, the defendant Bridges, joined by defendants Bove and Messerole, moved pursuant to CPLR 3126 to dismiss the complaint by reason of the plaintiff's continued failure to produce the CAT scan. In his affirmation in opposition to the motion, the plaintiff's attorney revealed, for the first time, that the CAT scan in question had been allegedly stolen from a van on or about March 19, or March 20, 1984, and no other copies of the CAT scan film were in existence. The plaintiff's counsel did not indicate when he first learned of the alleged theft. It is clear, however, that the theft occurred over five months after service of the original notice for discovery and inspection and about two weeks after service of the order of February 27, 1984, which directed production of the CAT scan. More importantly, at the time the second motion to strike was made, the CAT scan was allegedly no longer available. Nevertheless, no allegation to that effect was made in the plaintiff's opposition papers.

By order dated September 21, 1984, Special Term (Kuffner, J.) granted the defendants' motion to dismiss the complaint. The court found the conduct of the plaintiff's counsel in failing to comply with the discovery notice and with the prior orders of the court to be "willful and contemptuous". It further found that the plaintiff's attorney had simply ignored the notice and two prior orders and had falsely stated in opposition to one of the prior motions that an authorization for production of the CAT scan was being furnished. This appeal ensued.

We do not believe that dismissal of the complaint upon the facts presented in the instant matter may be characterized as an abuse of discretion. Nor would it be appropriate, at bar, for this court to substitute its discretion for that of the Justice sitting at Special Term or to impose financial sanctions in lieu of dismissal. Accordingly, the order of Special Term dismissing the complaint pursuant to CPLR 3126 should be affirmed.

The introduction of the Individual Assignment System (hereinafter the IAS) for processing civil actions in the trial courts of the State of New York demands that substantial deference be accorded the discretion of the Trial Judge in compelling compliance with discovery demands. In order to further the purpose of the IAS system to impose direct accountability on both lawyers and Judges and thereby...

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38 practice notes
  • CDR Créances S.A. v. Cohen
    • United States
    • New York Supreme Court Appellate Division
    • 27 Diciembre 2012
    ...Import v. Underwriters at Lloyds of London, England, 189 A.D.2d 613, 613, 592 N.Y.S.2d 314 [1st Dept. 1993], citing Sawh v. Bridges, 120 A.D.2d 74, 78, 507 N.Y.S.2d 632, [2nd Dept. 1986]appeal dismissed69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312 [1987] ). Dismissal of a pleading is with......
  • Klein ex rel. Klein v. Seenauth
    • United States
    • New York City Court
    • 25 Marzo 1999
    ...was no longer available resulted in the severe sanction of dismissal of the complaint, pursuant to CPLR 3126 (See Sawh v. Bridges, 120 A.D.2d 74, 507 N.Y.S.2d 632, app. dismissed 69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312). Eventually, the harsh sanctions of preclusion and dismissal we......
  • Walk & Smile, Inc. v. 2491 Atlantic Ave. Corp., No. 1
    • United States
    • New York Supreme Court — Appellate Division
    • 1 Mayo 1989
    ...protracted delay or other contumacious conduct (see, Anteri v. NRS Construction Corp., 148 A.D.2d 563, 539 N.Y.S.2d 33; Sawh v. Bridges, 120 A.D.2d 74, 78, 507 N.Y.S.2d 632; Stephens v. Stephens, 146 A.D.2d 625, 538 N.Y.S.2d 454; see also, Podolsky v. Podolsky, 145 A.D.2d 611, 536 N.Y.S.2d ......
  • Richardson v. Schindler
    • United States
    • New York Supreme Court Appellate Division
    • 25 Mayo 2010
    ...to CPLR 3126 should not be readily disturbed absent a clear abuse of discretion ( id. at 286, 863 N.Y.S.2d 193; see Sawh v. Bridges, 120 A.D.2d 74, 79, 507 N.Y.S.2d 632 [1986], appeal dismissed 69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312 [1987] ). Here, Supreme Court did not abuse its d......
  • Request a trial to view additional results
38 cases
  • CDR Créances S.A. v. Cohen
    • United States
    • New York Supreme Court Appellate Division
    • 27 Diciembre 2012
    ...Import v. Underwriters at Lloyds of London, England, 189 A.D.2d 613, 613, 592 N.Y.S.2d 314 [1st Dept. 1993], citing Sawh v. Bridges, 120 A.D.2d 74, 78, 507 N.Y.S.2d 632, [2nd Dept. 1986]appeal dismissed69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312 [1987] ). Dismissal of a pleading is with......
  • Klein ex rel. Klein v. Seenauth
    • United States
    • New York City Court
    • 25 Marzo 1999
    ...was no longer available resulted in the severe sanction of dismissal of the complaint, pursuant to CPLR 3126 (See Sawh v. Bridges, 120 A.D.2d 74, 507 N.Y.S.2d 632, app. dismissed 69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312). Eventually, the harsh sanctions of preclusion and dismissal we......
  • Richardson v. Schindler
    • United States
    • New York Supreme Court Appellate Division
    • 25 Mayo 2010
    ...to CPLR 3126 should not be readily disturbed absent a clear abuse of discretion ( id. at 286, 863 N.Y.S.2d 193; see Sawh v. Bridges, 120 A.D.2d 74, 79, 507 N.Y.S.2d 632 [1986], appeal dismissed 69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312 [1987] ). Here, Supreme Court did not abuse its d......
  • Walk & Smile, Inc. v. 2491 Atlantic Ave. Corp., No. 1
    • United States
    • New York Supreme Court — Appellate Division
    • 1 Mayo 1989
    ...protracted delay or other contumacious conduct (see, Anteri v. NRS Construction Corp., 148 A.D.2d 563, 539 N.Y.S.2d 33; Sawh v. Bridges, 120 A.D.2d 74, 78, 507 N.Y.S.2d 632; Stephens v. Stephens, 146 A.D.2d 625, 538 N.Y.S.2d 454; see also, Podolsky v. Podolsky, 145 A.D.2d 611, 536 N.Y.S.2d ......
  • Request a trial to view additional results

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