Opinion
995 CA 21-00704
04-28-2023
Florence Louise HARMS, Individually and as Executor of the Estate of Robert L. Harms, Deceased, Plaintiff-Appellant, v. TLC HEALTH NETWORK, Lake Shore Health Care Center, Defendants-Respondents, et al., Defendants.
PAUL WILLIAM BELTZ, P.C., BUFFALO (WILLIAM A. QUINLAN OF COUNSEL), FOR PLAINTIFF-APPELLANT. BARGNESI BRITT, PLLC, BUFFALO (JASON T. BRITT OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PAUL WILLIAM BELTZ, P.C., BUFFALO (WILLIAM A. QUINLAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BARGNESI BRITT, PLLC, BUFFALO (JASON T. BRITT OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this medical malpractice and wrongful death action, plaintiff appeals from an order that dismissed as moot her motion to strike the answer of TLC Health Network and Lake Shore Health Care Center (collectively, defendants) or compel them to comply with her fourth notice to produce (notice to produce), which sought, inter alia, electronic medical record audit trails relating to defendants’ care and treatment of plaintiff's decedent. We affirm.
"[T]rial courts have broad discretion in supervising disclosure and, absent a clear abuse of that discretion, a trial court's exercise of such authority should not be disturbed" ( Prattico v. City of Rochester , 197 A.D.3d 882, 883, 153 N.Y.S.3d 261 [4th Dept. 2021] [internal quotation marks omitted]; see Castro v. Admar Supply Co., Inc. [appeal No. 2], 159 A.D.3d 1616, 1617, 73 N.Y.S.3d 856 [4th Dept. 2018] ; Allen v. Wal-Mart Stores, Inc. , 121 A.D.3d 1512, 1513, 993 N.Y.S.2d 820 [4th Dept. 2014] ). In recognition of the fact that "[a]ctions should be resolved on their merits wherever possible" ( Pezzino v. Wedgewood Health Care Ctr., LLC , 175 A.D.3d 840, 841, 106 N.Y.S.3d 535 [4th Dept. 2019] [internal quotation marks omitted]), we have "repeatedly held that the striking of a pleading is appropriate only where there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" ( Perry v. Town of Geneva , 64 A.D.3d 1225, 1226, 882 N.Y.S.2d 626 [4th Dept. 2009] [internal quotation marks omitted]; see generally CPLR 3126 [3] ). "The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders" ( Pezzino , 175 A.D.3d at 841, 106 N.Y.S.3d 535 [internal quotation marks omitted]). " ‘Once a moving party establishes that the failure to comply with a disclosure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse’ " ( Hann v. Black , 96 A.D.3d 1503, 1504-1505, 946 N.Y.S.2d 722 [4th Dept. 2012] ).
We reject plaintiff's contention that Supreme Court erred in refusing to strike defendants’ answer for failure to comply with the notice to produce. Plaintiff did not establish that defendants engaged in any "willful, contumacious, or ... bad faith" noncompliance with the notice to produce ( Perry , 64 A.D.3d at 1226, 882 N.Y.S.2d 626 ; see Pezzino , 175 A.D.3d at 841-842, 106 N.Y.S.3d 535 ). The record contains no showing, "beyond mere conjecture, that there is relevant information to be gleaned from ... audit trails which cannot be obtained from other sources" of information that were already supplied by defendants ( Punter v. New York City Health & Hosps. Corp. , 2019 N.Y. Slip Op. 31065[U], *7, 2019 WL 1750859 [Sup. Ct., N.Y. County 2019], mod on rearg 2019 N.Y. Slip Op. 34239[U], 2019 WL 5882250, affd 191 A.D.3d 563, 138 N.Y.S.3d 856 [1st Dept. 2021] ; cf. Vargas v. Lee , 170 A.D.3d 1073, 1076-1077, 96 N.Y.S.3d 587 [2d Dept. 2019] ). We further conclude that the court did not abuse its discretion in dismissing the motion on the ground that defendants substantially complied with the notice to produce insofar as it sought audit trail data; defendants disclosed decedent's electronic medical records, which already displayed much of the information sought from the audit trails—i.e., alterations made to the electronic medical records—and defendants otherwise provided reasonable explanations for why some of the requested information was no longer available (see Tanriverdi v. United Skates of Am., Inc. , 164 A.D.3d 858, 860, 83 N.Y.S.3d 542 [2d Dept. 2018] ; Lampel v. Sergel , 287 A.D.2d 548, 549, 731 N.Y.S.2d 669 [2d Dept. 2001] ; see generally Castro , 159 A.D.3d at 1617, 73 N.Y.S.3d 856 ). Plaintiff's contention that the court erred in considering the papers defendants submitted in surreply is not properly before us because it is raised for the first time on appeal (see Oerlemans v. Cornish , 21 A.D.3d 1308, 1309, 801 N.Y.S.2d 197 [4th Dept. 2005] ; Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). In any event, the court did not err in relying on the surreply for the purpose of affording defendants the reasonable opportunity to respond to the new arguments advanced by plaintiff in her reply (see generally Conarton v. Holy Smoke BBQ & Catering, LLC , 186 A.D.3d 1111, 1111, 127 N.Y.S.3d 374 [4th Dept. 2020] ; Matter of Dusch v. Erie County Med. Ctr. , 184 A.D.3d 1168, 1170, 125 N.Y.S.3d 511 [4th Dept. 2020] ).
We have considered plaintiff's remaining contentions and conclude that none warrants modification or reversal of the order.