Wolfson v. Nassau County Medical Center

• Decision Date: 27 June 1988
• Citation: Wolfson v. Nassau County Medical Center, 530 N.Y.S.2d 27, 141 A.D.2d 815 (N.Y. App. Div. 1988)
• Parties: Michael Alan WOLFSON, et al., etc., Appellants, v. NASSAU COUNTY MEDICAL CENTER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 27

530 N.Y.S.2d 27

141 A.D.2d 815

Michael Alan WOLFSON, et al., etc., Appellants, v. NASSAU COUNTY MEDICAL CENTER, Respondent.

Supreme Court, Appellate Division Second Department.

June 27, 1988.

Shapiro, Baines, Saasto & Shainwald, Mineola (Paul F. McAloon, of counsel), for appellants.

Edward T. O'Brien, Co. Atty., Mineola (Patricia M. Carroll, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, BROWN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries based upon medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Becker, J.), dated November 18, 1986, which granted the defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The defendant served a series of interrogatories on the plaintiffs on or about February 1, 1984. More than two and one-half years elapsed before, on or about September 29, 1986, the defendant made a motion to dismiss the complaint because of the plaintiffs' failure to respond to the interrogatories. The court granted the motion and denied a subsequent motion by the plaintiffs for reargument. This appeal followed.

A court may dismiss an action if the plaintiff "wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126). The sanction of dismissal may be warranted even where, as in the present case, the plaintiff committed no violation of a prior court order ( see, Goldner v. Lendor Structures, 29 A.D.2d 978, 289 N.Y.S.2d 687; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y. Book 7B, CPLR C3126:6, at 645-646).

In the present case, the extensive nature of the plaintiffs' delay in responding to the defendant's interrogatories permits an inference that the delay was wilful. The plaintiffs' current attorneys allege absolutely no excuse for this delay and state only that they were not substituted for the plaintiffs' former attorneys until after, or shortly before, the defendant made the motion pursuant to CPLR 3126. This circumstance neither explains nor excuses the unconscionable delay in prosecuting this action. The default can therefore be considered wilful and no error as a matter of law was committed when the Supreme Court imposed the sanction of dismissal.

Furthermore, we find that the refusal of the court to exercise its discretionary power to impose a lesser sanction ( see, e.g., Applied Elec. Corp. v. City of New York 101...