Irving v. Four Seasons Nursing & Rehab. Ctr.

150 A.D.3d 972

55 N.Y.S.3d 140

Patrice James IRVING, etc., appellant,

v.FOUR SEASONS NURSING AND REHABILITATION CENTER, et al., respondents, et al., defendant.

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

May 17, 2017.

Jonathan Rice, Dobbs Ferry, NY, for appellant.

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, NY (Scott G. Christesen and Michelle C. Acosta of counsel), for respondents.

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, HECTOR D. LaSALLE, and FRANCESCA E. CONNOLLY, JJ.

Appeal from an order of the Supreme Court, Kings County (Martin Schneier, J.H.O.), dated December 2, 2014. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was to impose a penalty for failure to comply with discovery demands and orders.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2009, Maureen Malcolm (hereinafter the decedent) commenced this action, inter alia, to recover damages for personal injuries, human rights violations, intentional infliction of emotional distress, and medical malpractice with respect to the care that she received at a nursing home operated by the defendants Four Seasons Nursing and Rehabilitation Center and Parkshore Health Care, LLC (hereinafter together the respondents). Included in these causes of action were allegations of violations of Public Health Law § 2801–d and Administrative Code of the City of New York § 8–502(a). The complaint also sought an award of punitive damages. Patrice James Irving, as the administrator of the decedent's estate, was subsequently substituted as the plaintiff in this action. Thereafter, in July 2014, the plaintiff moved, inter alia, to strike the respondents' answer or, in the alternative, preclude the respondents from offering evidence at trial, on the ground that the respondents willfully and contumaciously failed to comply with discovery demands and orders. In an order dated December 2, 2014, the Supreme Court directed the respondents to provide documents responsive to several of the plaintiff's discovery demands, but otherwise denied the motion. The plaintiff appeals from so much of the order as denied that branch of her motion which was to impose a penalty for failure to comply with discovery demands and orders.

"Generally, the nature and degree of a penalty to be imposed on a motion pursuant to CPLR 3126 is left to the discretion of the Supreme Court" (Richards v. RP Stellar Riverton, LLC, 136 A.D.3d 1011, 1011, 25 N.Y.S.3d 346 ; see Clarke v. Clarke, 113 A.D.3d 646, 979 N.Y.S.2d 124 ). "However, the drastic remedy of striking a pleading or even precluding evidence pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious" (Palmieri v. Piano Exch., Inc., 124 A.D.3d 611, 612, 1 N.Y.S.3d 315 ; see Henry v. Datson, 140 A.D.3d 1120, 1121, 35 N.Y.S.3d 383 ; New York Timber, LLC v. Seneca Cos., 133 A.D.3d 576, 19 N.Y.S.3d 78 ). Here, the plaintiff failed to make a clear showing that the respondents' conduct was willful and contumacious (see Yakobowicz v. Yakobowicz, 142 A.D.3d 996, 997, 37 N.Y.S.3d 560 ; De Leo v. State–Whitehall Co....