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Escobar v. St. Vincent's Medical Center of Richmond12/17/2003
This opinion is uncorrected and will not be published in the Official Reports.
Appeal by defendant from an order of the Civil Court, Richmond County (E. Vitaliano, J.), entered June 20, 2002, which denied its motion to dismiss the complaint pursuant to CPLR 3126 based upon plaintiffs noncompliance with discovery orders.
Order modified by providing that defendants motion to dismiss is denied on condition that plaintiffs attorney pay $500 to defendant within 20 days of the date of the order hereon, and by providing that plaintiff furnish defendant with all outstanding authorizations within 30 days of the date of the order hereon, and that plaintiff appear for an examination before trial within 60 days of the date of the order hereon at a time and place to be specified in a written notice of not more than 10 days to be given by defendant, or at such time and place as the parties may agree; otherwise, defendant's motion to dismiss is granted. As so modified, order affirmed without costs.
The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the trial court (see Patterson v New York City Health & Hosps. Corp., 284 AD2d 516 ). Within such discretion is the dismissal of a pleading "where a party disobeys a court order, and by his conduct frustrates the disclosure scheme provided by the CPLR" (Castrignano v Flynn, 255 AD2d 352, 352 ). The drastic remedy of striking a pleading is, however, inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious or in bad faith (see Hollymount Corp. v Myung J. Park Corp., 300 AD2d 444 [20021). Although there is no question that plaintiffs counsel acted in a most dilatory manner, it does not appear, based on this record, that his conduct was willful or contumacious. Nevertheless, because of the extended period of delay involved herein, a conditional order would have been a more appropriate disposition under the circumstances of this case.
Pesce, P.J., and Aronin, J., concur.
Patterson, J., dissents in a separate memorandum.
Patterson, J. dissents and votes to reverse the order appealed from, by granting defendant's motion to dismiss the complaint, in the following memorandum.
While I agree with my colleagues that the nature and degree of the penalty to be imposed 'upon a motion pursuant to CPLR 3126 is a matter of the lower court's discretion (see Patterson v New York City Health & Hosps. Corp., 284 AD2d 516 ), it is my opinion that the court below improvidently exercised its discretion in denying defendant's motion to dismiss the complaint.
The instant personal injury action arose out of an accident which is claimed to have occurred on January 4, 1995, when plaintiff allegedly slipped on a slippery foreign substance on the floor of defendant hospital, which caused him to fall and fracture his right ankle. A summons and complaint were filed in the Supreme Court of Richmond County and served on the defendant in September of 1995. In October of 1995, an answer and demand for a bill of particulars were served. The bill of particulars was not received by defendant until May of 1996, after defendant was forced to make a motion to preclude (which motion was ultimately withdrawn). In October of 1996, a preliminary conference (PC) order directed that EBTs of all parties be held within two months of the order, and that plaintiff provide defendant with various items of discovery within 30 days. By the end of 1997, EBTs had yet to be conducted and, by "so ordered" stipulation following a compliance conference, the parties set up a new discovery schedule
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