Opinion
2007-1565 S C.
Decided November 26, 2008.
Appeals from orders of the District Court of Suffolk County, Fourth District (Gigi A. Spelman, J.), dated December 8, 2006 and September 4, 2007. The order dated December 8, 2006, inter alia, directed the parties to complete all outstanding discovery within 45 days of the mailing of the order. The order dated September 4, 2007 denied defendant's motion for summary judgment dismissing the complaint and conditionally granted plaintiff's cross motion to dismiss the counterclaim unless defendant served responses to plaintiff's discovery demands within 20 days of the mailing of the order.
Appeal from order dated December 8, 2006 dismissed for lack of prosecution.
Order dated September 4, 2007 affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and MOLIA, JJ.
Plaintiff brought this action in 2004 seeking payment of unpaid hospital bills in the principal sum of $9,226.50, and, as a second cause of action, seeking recovery on an account stated. Defendant denied the allegations of the complaint and asserted an affirmative defense and counterclaim, alleging medical malpractice. Together with the answer and counterclaim, defendant served a set of interrogatories. Plaintiff replied to the counterclaim and simultaneously served a set of discovery demands.
By order dated July 7, 2005, a motion and a cross motion for protective orders were denied, the parties were given 20 days to provide most of the discovery sought, and an examination before trial was scheduled to proceed on July 27, 2005. Instead of complying with said order, however, the parties filed cross appeals from the order, which appeals were subsequently dismissed for lack of prosecution. Additional discovery motions were resolved by order dated December 8, 2006, which order, inter alia, gave the parties 45 days to complete all outstanding discovery. Defendant filed a notice of appeal from said order but again failed to perfect the appeal. Accordingly, the appeal from said order is dismissed.
Yet further discovery motions were resolved by order dated March 20, 2007, which, inter alia, conditionally determined all claims on the complaint and the counterclaim in favor of defendant unless, within 15 days, plaintiff provided "proper and responsive" verified answers to defendant's interrogatories. Plaintiff failed to timely comply, and instead, nine days late, made an oral request for an extension of time on the ground that the intended signator to the interrogatories was out of the country. This request was granted, by order dated April 30, 2007, upon a finding that plaintiff had established good cause for its failure to comply with the order of March 20, 2007. No appeal was taken from that order.
When it was served, plaintiff's supplemental response to interrogatories contained numerous references to the hospital record. Defendant, who was then required, pursuant to the order dated March 20, 2007, to serve a bill of particulars, instead moved for summary judgment dismissing the complaint, claiming that the March 20, 2007 conditional order had become absolute upon plaintiff's failure to respond to it on time, and that, in any event, plaintiff's answers to the interrogatories were not "proper and responsive," as required by the March 20, 2007 conditional order. Plaintiff cross-moved for summary judgment dismissing the counterclaim, on the ground that defendant had failed to provide the discovery required under the March 20, 2007 conditional order. None of the motion papers, however, included the hospital record. By order dated September 4, 2007, the District Court denied defendant's motion and conditionally granted plaintiff's cross motion by providing that all issues with respect to the counterclaim be decided in favor of plaintiff unless defendant served responses to plaintiff's discovery demands within 20 days of the mailing of the order. We now consider defendant's appeal from this order.
Generally, upon the failure to perform court-ordered disclosure, a conditional discovery order becomes absolute ( e.g. Gavrielatos v Vienna Hotel , 31 AD3d 496; Echevarria v Pathmark Stores, Inc. , 7 AD3d 750 , 751). However, where a reasonable excuse is demonstrated for a failure to produce disclosure within the time frame of a conditional order, the existence of a meritorious cause of action is shown, and the party seeking the sanctions does not demonstrate that the failure to comply with a discovery order was "willful and contumacious," it is well within the scope of the court's discretion to deny a motion to strike the pleadings ( id.; 1523 Real Estate, Inc. v East Atl. Props., LLC , 41 AD3d 567 , 568). So here, where plaintiff offered a reasonable excuse for its delay in compliance with the discovery order and made a showing that it had a meritorious claim, and where there was no showing by defendant that plaintiff's delay in compliance was "wilful or contumacious," the District Court did not improvidently exercise its discretion in refusing to decide all the issues in defendant's favor with respect to the complaint based on plaintiff's delay in compliance.
Defendant also challenges the portion of the District Court's order denying summary judgment, based on plaintiff's alleged failure to give fully responsive answers to defendant's first set of interrogatories. Plaintiff's answers to those interrogatories made numerous references to the hospital chart, a copy of which is in defendant's possession. The hospital record was not, however, included in the motion papers. As it was defendant's burden upon her motion to demonstrate the insufficiency of plaintiff's responses to defendant's demands, and as defendant failed to satisfy her burden by including the hospital record in her motion papers, we sustain the District Court's determination that plaintiff's responses to defendant's first set of interrogatories substantially comply with the March 20, 2007 discovery order. Accordingly, we find that the District Court did not improvidently exercise its discretion in denying defendant's motion for summary judgment dismissing the complaint.
Finally, since as noted above, it is well within a court's discretion to make conditional discovery orders that impose severe sanctions in the event of noncompliance, and particularly in light of the long history of discovery motions and fractious behavior between counsel in this case, we decline to disturb that portion of the District Court's order, dated September 4, 2007, which conditionally granted plaintiff's cross motion for summary judgment dismissing the counterclaim by requiring defendant to serve responses to plaintiff's combined discovery demands within 20 days on pain of dismissal.
Rudolph, P.J., McCabe and Molia, JJ., concur.