Teitelbaum v. Maimonides Med. Ctr.

• Decision Date: 23 November 2016
• Citation: Teitelbaum v. Maimonides Med. Ctr., 2016 NY Slip Op 7944, 144 A.D.3d 1013, 43 N.Y.S.3d 66 (N.Y. App. Div. 2016)
• Parties: Hindy TEITELBAUM, etc., et al., respondents, v. MAIMONIDES MEDICAL CENTER, et al., appellants.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1013

43 N.Y.S.3d 66

2016 N.Y. Slip Op. 07944

Hindy TEITELBAUM, etc., et al., respondents,

v.MAIMONIDES MEDICAL CENTER, et al., appellants.

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

Nov. 23, 2016.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY (Steven C. Mandell of counsel), for appellants Maimonides Medical Center, Arie Schwartz, Pedram Bral, Yellagondahal V. Janardhan, and Suman Agrawal.

Vincent D. McNamara, East Norwich, NY (Helen M. Benzie of counsel), for appellant Getl L. Kaspar.

Torgan, Cooper & Aaron, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen ], of counsel), for respondents.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER and HECTOR D. LaSALLE, JJ.

In an action to recover damages for medical malpractice, etc., the defendants Maimonides Medical Center, Arie Schwartz, Pedram Bral, Yellagondahal V. Janardhan, and Suman Agrawal appeal, and the defendant Getl L. Kaspar separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated January 16, 2015, as, in effect, denied their respective motions pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against each of them unless the infant plaintiff failed to submit to two independent medical examinations on specified dates.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

"The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court" (Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 1081, 885 N.Y.S.2d 718 ; see Apladenaki v. Greenpoint Mtge. Funding, Inc., 117 A.D.3d 976, 986 N.Y.S.2d 589 ; Arpino v. F.J.F. & Sons Elec. Co. Inc., 102 A.D.3d 201, 209, 959 N.Y.S.2d 74 ). "However, the drastic remedy of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time" (Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d 922, 923, 938 N.Y.S.2d 131 ; see Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 686–687, 920 N.Y.S.2d 394 ). Here, the record demonstrates that the parties entered into seven so-ordered compliance conference orders over a nearly two-year period, each agreed to and signed by the parties' attorneys, which postponed the date by which the infant plaintiff was required to submit to two separate independent medical examinations (hereinafter IMEs). Although the defendants contend that the plaintiffs intentionally failed to schedule the IMEs, the record demonstrates that the defendants failed to timely designate doctors to perform the IMEs, and followed up infrequently with the plaintiffs about scheduling the IMEs.

The...