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Refusal to Comply with Discovery Demand Supported Sanction of Dismissal of the Complaint

The Second Department determined Supreme Court had properly dismissed the complaint in a medical malpractice action because the plaintiffs refused to identify the mohel who had performed the circumcision of infant plaintiff.  In finding dismissal of the entire complaint an appropriate sanction, the court wrote:

“The Supreme Court has broad discretion in making determinations concerning matters of disclosure including the nature and degree of the penalty to be imposed under CPLR 3126” … . “The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious”… . Further, the court can infer that a party is acting willfully and contumaciously through his or her repeated failure to respond to demands or to comply with discovery orders … .  Silberstein v Maimonides Med Ctr, 2013 NY Slip Op 05813, 2nd Dept 9-11-13

 

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THE DEFENDANT’S WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE FAILED TO ADVISE DEFENDANT (1) THAT THE STATE WOULD BEAR THE COSTS OF AN APPEAL IF THE DEFENDANT COULD NOT AFFORD THEM; AND (2) THE WAIVER DID NOT ENCOMPASS THE LOSS OF RIGHTS TO COUNSEL AND THE WAIVER OF COSTS, FEES, AND EXPENSES; IN ADDITION THE JUDGE DID NOT ASCERTAIN WHETHER DEFFENDANT READ AND UNDERSTOOD THE WRITTEN WAIVER FORM, OR WHETHER DEFENDANT HAD DISCUSSED THE WAIVER WITH COUNSEL (SECOND DEPT). ​
​ A VOLUNTARY DISCONTINUANCE OF A FORECLOSURE ACTION NO LONGER STOPS THE STATUTE OF LIMITATIONS (SECOND DEPT). ​
LABOR LAW 240 (1) AND 200 CAUSES OF ACTION MAY BE PLED IN THE ALTERNATIVE (SECOND DEPT).
REQUEST FOR STATEMENTS MADE BY WITNESSES WHO DID NOT TESTIFY AT TRIAL (BECAUSE PETITIONER PLED GUILTY) SHOULD HAVE BEEN DENIED; NON-TESTIFYING WITNESS STATEMENTS ARE CONFIDENTIAL; REQUEST FOR GRAND JURY MINUTES SHOULD HAVE BEEN DENIED; ALTHOUGH THE PUBLIC INTEREST IS INVOLVED, PETITIONER DID NOT MAKE THE REQUISITE FACTUAL SHOWING OF A PARTICULARIZED NEED FOR DISCLOSURE.
SUPREME COURT SHOULD NOT HAVE IGNORED THE NOTICE REQUIREMENTS IN THE BUSINESS CORPORATION LAW AND SHOULD NOT HAVE DISSOLVED THE CLOSELY HELD CORPORATION WITHOUT A HEARING (SECOND DEPT).
INJURY FROM A FALLING BLOCK AND CHAIN USED TO REPLACE A ROLL UP DOOR WAS COVERED UNDER LABOR LAW 240 (1) BUT NOT UNDER LABOR LAW 241 (6) (SECOND DEPT).
THE PETITION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN DISMISSED BASED ON THE WRONG VENUE BECAUSE RESPONDENTS DID NOT OBJECT TO THE VENUE; IN THIS MEDICAL MALPRACTICE CASE BASED UPON A STILLBIRTH, MOTHER’S AND FATHER’S PETITIONS MUST BE CONSIDERED SEPARATELY; ALTHOUGH PETITIONERS DID NOT SHOW RESPONDENTS HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT, MOTHER DEMONSTRATED AN ADEQUATE EXCUSE AND RESPONDENTS’ LACK OF PREJUDICE; MOTHER’S PETITION WAS GRANTED AND FATHER’S WAS DENIED (SECOND DEPT).
DEFENDANTS PRESENTED EVIDENCE THE BANK ACCEPTED PAYMENTS IN LESS THAN THE REQUIRED AMOUNT AFTER THE ALLEGED DEFAULT; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)

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