Margulies v Gardner
2012 NY Slip Op 30965(U)
April 9, 2012
Supreme Court, New York County
Docket Number: 100648/06
Judge: Joan B. Lobis
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SUPREME COURT OF THE STATE OF NEW YORK
- NEW YORK COUNTY
MOTION CAI.. NO.
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SUBMIT ORDER/ JUDG.
SETTLE ORDER/ JUDG.
Index No. 100648/06
Decision and Order
-againstANDREW GARDNER, JOEL MOSKOWITZ,
CORINTHIAN OB/GYN, P.C., CECILIA
SCHMIDT-SAROSI, OFFICES FOR FERTILITY AND
RXPRODUCTIVE MEDICINE, P.C.,
CENTER, GENZYME GENETIC and SHARONA COHEN,
In Motion Sequence Number 017, plaintiffs Joshua and Elizabeth Margulies move,
by order to show cause, for an order vacating the default judgment entered against them on
November 15,20 11. Defendants oppose the motion.
An explanation of this protracted litigation is warranted. Plaintiffs are the parents of
a child, Benjamin Margulies, who was diagnosed with Tay-Sachs Disease fourteen (14) months after
he was born and who died at the age of two years and ten months on November 27,2006. In 2006,
shortly before Benjamin died, plaintiffs commenced this action for the wrongful birth of Benjamin
based on their allegations of defendantsâ negligence. At the time they commenced the action,
plaintiffs were represented by Gair, Gair, Conason, Steigman & Mackauf (âGair Gairâ). The action
was originally assigned to the Hon. Sheila Abdus-Salaam. Early in the litigation, Genzyme
Corporation sMa Genzyme Genetic successfully moved for an order dismissing the complaint
against it. See decision and order on Motion Sequence Number (hereinafter âSequenceâ) 002, dated
December 13,2007. In the fall of 2007, Gair Gair successfully moved for an order permitting them
to withdraw as plaintiffsâ attorneys.
See decision and order on Sequence 003, dated October 25,
2007. In 2008, defendant Sharona Cohen moved for summary judgment; this motion was denied.
-decision and order on Sequence 004, dated June 2,2008. At some point during this time period,
plaintiffs, who had been proceeding pro se since Gair Gair withdrew in 2007, hired attorney Rudolph
In May 2009, the action was reassigned to the undersigned due to inventory changes.
In Sequence 006, which was fully submitted in September 2009, plaintiffs sought leave to amend
their complaint to add Benjaminâs estate as a necessaryparty; add a cause of action for the conscious
pain and suffering of Benjamin; and add a punitive damages claim. Sequence 006 was denied in its
entirety in a decision and order dated December 4, 2009. During this time period, i a series of
motions in a related action (Cohen v. Medical Malpractice Ins. Pool of N.Y.S., Index No.
114857/06), Ms. Cohen moved for a judgment declaring that her co-defendant Joel Moskowitz,
M.D.âs medical malpractice insurance carrier was obligated to defend and indemnify her in this
action, and the carrier moved for a judgment declaring that it was not obligated to defend or
indemnify her. The insurance carrierâs motion was granted, Ms. Cohenâs motion was denied, and
this separate action was dismissed.
See decision and order on Sequence 003-007, dated April 5 ,
2010, on Cohenv. MedicalMalpractice Ins. Pool ofN.Y.S.,IndexNo. 114857/06. Alsooverlapping
this time period were five motions (Sequence 007-01 1) filed in this action by the various defendants
seeking summary judgment, based on certain inconsistent statements made by plaintiffs in their
unsuccessful attempt to amend their motion in Sequence 006. Defendantsâ respective motions for
summaryjudgment were denied. See decision and order on Sequence 007-0 11, dated May 28,20 10.
Shortly thereafter, Ms. Cohenâs attorneys successfully moved to be relieved as her counsel.
decision and order on Sequence 012, dated December 3,2010. Ms. Cohen is currently proceeding
In the most recent motion practice (Sequence 013-016), defendants respectively
moved for an order, pursuant to C.P.L.R. 3212, dismissing plaintiffsâ complaint with prejudice.
Although plaintiffs submitted opposition papers to defendantsâ respective motions, Mi. Silas failed
to appear for oral argument on the return date of November 15, 201 1. Upon plaintiffsâ default in
appearing for oral argument, the court granted defendantsâ respective motions and directed them to
settle an order on notice.
See decision and order on Sequence 0 13-016, dated November 16,20 1 1.
On or about November 23,201 1,counsel for defendant Dr. Moskowitz served a proposed order with
notice of settlement, to be presented for signature on December 14,2011. On December 19,20 1 1,
plaintiffs filed the instant motion (Sequence 017), seeking an order staying any action on the
proposed order regarding the disposition of Sequence 0 13-0 16 and vacating their default for having
failed to appear on November 15,20 11.
In his affmation in support of plaintiffsâ motion, Mr. Mas sets forth that on
November 15,20 1 1, he was returning from Jacksonville, Florida, where he had gone on a âfamily
emergency to prevent [his] uncle and client, who is aged and i n f m e d [sic], from being rendered
financially destitute due to certain unauthorized and fraudulent transactions against his bank
accounts.â Mr. Silas contends that previously, his uncle had been the victim of a theft of $85,750
from his bank account. Mr. Mas states that on November 10,20 1 1, his uncle telephoned him with
concerns that his accounts had fraudulent activity on them again. Mr. Silas states that given the prior
history regarding his uncleâs bank accounts, he immediately arranged to travel to Jacksonville to
resolve the issue and secure his uncleâs accounts. He states that he departed for Jacksonville on
November 12 (a Saturday), whereupon he went to his uncleâs bank to investigate activity on an
overdrawn account. Mr. Silas then states that while he was at the bank, he realized that he had left
his cellular phone, which contained his calendar, at his sisterâs house in New York. He states that
his sister was away from her house for the weekend. He states that after leaving the bank, he
contacted his uncleâs other bank to cancel a credit card on which there had been activity that
appeared to be fraudulent. Mr. Mas maintains that by November 14 (Monday), he was still unable
to reach his sister to determine when she would be returning home so that he could check his
schedule, and that there was no one in his office who could assist him. He then continued dealing
with his uncleâs matters in Jacksonville.
Mr. Silas asserts that, relying on his memory, he believed that the return date for
defendantsâ summary judgment motions was scheduled for Wednesday, November 16,2011. He
states that he confused the return date in this case with another longstanding matter that was actually
scheduled for November 16,2011. He states that he returned to New York on Tuesday, November
15, 201 1, at 10:50 a.m., but he was still without his cellular phone and unaware of his actual
scheduled appearance at 1O:OO a.m.â that day. Mr. Silas states that it was not until 8:OO p.m. on
November 15, when he retrieved his cellular phone, did he remember the scheduled return date for
The appearance was actually scheduled for 1 1:00 a.m.
Mr. Silas includes affidavits from his uncle and his sister in support of his
explanation. His sister attests that her apartment is in the Bronx but that, during the weekend in
question, she was at her fimctâs house in Brooklyn.
Mr. Silas avers that his failure to appear in court on November 15 was not willful but
the result of the aforementioned circumstances, which he believes amount to a reasonable excuse.
Mr. Silas further states that he had submitted a good faith, non-frivolous opposition to defendantsâ
summaryjudgment motions. Plaintiffs also annex what is titled a âCertificate of Merit,ââ signed by
Mr. Silas, in which he sets forth that plaintiffs have reviewed the facts of the case, have consulted
with at least two physicians who are licensed to practice medicine in the State of New York, and
have concluded that there is a reasonable basis for the action.
Defendants vigorously oppose plaintiffsâ motion. They argue that plaintiffsâ excuse
for not appearing on November 15,201 1, is not reasonable, especially in light of Mr. Silasâ previous
failures to appear for scheduled court conferences and late appearances at scheduled court
conferences, which were the basis for their seeking sanctions in Sequence 013-016. Defendants also
argue that plaintiffs have not sufficiently demonstrated that their action has merit because they failed
to provide an affirmation or affidavit from a physician, a necessary step in vacating their default.
Additionally, Dr. Moskowitz argues that there are a number of deficiencies in plaintiffsâ instant order
to show cause. First, he maintains that Mr. Silas did not serve him with a conformed copy of the
order to show cause after I signed it because he omitted a handwritten paragraph. It was in this
paragraph that Mr. Silns handwrote that he gave notice to defendants as to when he would be
presenting his order to show cause seeking a stay. Second, Dr. Moskowitz argues that the stay that
I issued in conjunction with the order to show cause-staying any action to enter a judgment or
improper because (1) plaintiffs never attested to the âsignificant prejudiceâ
that would befall them if the stay were not granted, and (2) plaintiffs never properly noticed
defendants as to when the order to show cause would be presented. Third, Dr. Moskowitz argues
that plaintiffsâ application, as a whole, is improper and premature because there has yet to be an
entered order or an executed judgment.
In reply, plaintiffsâ attorney asks the court to take judicial notice of a prior expertâs
affirmationthat was submitted in support of plaintiffsâ motion to amend their complaint on Sequence
006, in which David F. Kronn, M.D., opined that defendantsâ failure to ensure that plaintiffs received
prenatal testing for Tay-Sachs Disease was a proximate cause of Benjamin being born with TaySachs Disease. Plaintiffs argue that this affirmation should suffice as having demonstratedthe merits
of their action. Mr. Silas concedes that he failed to appear for court conferences on October 23,2008
and August 2,201 1, and that he appeared late on two occasions for court conferences, but argues that
his conduct is dissimilar to cases in which New York courts have denied vacatur of a default based
on a pattern of dilatory conduct. Mr. Silas does not deny that he failed to provide defendants with
the requisite notice as to when he would be presenting the court with an order to show cause that was
seeking a stay or that he served them with copies of the order to show cause that did not contain his
statement that he provided defendants with the requisite notice.
The court will first address the deficiencies in the order to show cause. First,
plaintiffsâ motion is not premature, because they are looking to vacate their default in appearing on
the return date of November 15,201 1, and they were found in default in appearing for oral argument
in this courtâs decision and order signed on November 16,201 1. Whether the order was or was not
entered prior to plaintiffs bringing this motion is not significant because service of a copy of the
order with notice of entry only starts the clock running on a partyâs one-year time limit within which
to move to vacate a default under C.P.L.R. Rule 5015(a). There is no bar to a party seeking to vacate
his default prior to entry of the order finding him in default.
Second, Dr. Moskowitzâs remaining arguments about the procedural defects in the
order to show cause are, in essence, arguments that plaintiffs sought a stay without complying with
22 N.Y.C.R.R.4 202.7(f), which sets forth:
[a]ny application for temporary injunctive relief, including but not
limited to a motion for a stay or a temporary restraining order, shall
contain . . , an affirmation demonstrating there will be significant
prejudice to the party seeking the restraining order by giving of
notice. In the absence of a showing of significant prejudice, the
affirmation must demonstrate that a good faith effort has been made
to notify the party against whom the temporary restraining order is
sought of the time, date and place that the application will be made
in a manner sufficient to permit the party an opportunity to appear in
response to the application.
I note that my records reflect that the proposed order-noticed
for signature on December 14,
did not reach my chambers until December 19,201 1, or later. This is the same date that I
signed plaintiffsâ order to show cause. Even had plaintiffs not sought a stay, I would have reserved
signature on the order finalizing the November 16,20 1 1 decision and order in the interest ofjudicial
economy. While Mr. Silasâ conduct with regard to presenting the order to show cause and serving
his adversaries with the signed copy was certainly sloppy, and perhaps worthy of the imposition of
costs or sanctions, it is not a reason to disregard the merits of plaintiffsâ application.
Under C.P.L.R. Rule 5015(a), the court may relieve aparty from ajudgment or order,
upon such terms as may be just, upon a showing of excusable default. In order to vacate a default
in appearing before the court, a party must demonstrate a reasonable excuse for his or her default and
facts indicating that his or her action (or defense) is meritorious. Rugieri v. Bannister, 7 N.Y.3d 742,
Turning to whether plaintiffs have shown that their claim has merit, in medical
malpractice cases, an affidavit or affirmation from a medical expert is required to demonstrate merit.
Fiore v. Galanq, 64 N.Y.2d 999, 1000-01 (1985); Rose v. O r Lady of Mercy Med. Ctr.,
268 A.D.2d 225,226 (1 st Depât 2000). Plaintiffs did not submit a proper affidavit or affmation of
merit with their moving papers. However, this is not a case where, prior to this motion, plaintiffs
have never provided an affirmation from an expert. Rather, as to their only viable cause of
had previously provided an affirmation from a physician i
conjunction with Sequence 006. Thus, the circumstances here are distinguishable from the cases in
which there had been no prior showing of the actionâs merit.
cf.Walker v. City of N.Y., 46 A.D.3d
278 (1st Depât 2007); Ramos v. Lapommeray, 135 A.D.2d 439 (1st Depât 1987); Canter v. Mulnick,
93 A.D.2d 751 (1st Depât 1983); Pel1 v. Button, 44 A.D.2d 549 (1st Depât), appeal dismissed, 34
N.Y.2d 936 (1974).
As to plaintiffsâ excuse, whether the movant has demonstrated a reasonable excuse
is a matter within the discretion of trial court. Rodgers v. 66 E. Tremont HRts. Hous. Dev. Fund
Cow.,69 A.D.3d 5 10 (1st Depât 2010) (citation omitted); Carroll v. Nostra Realty Corp, 54 A.D.3d
623 (1st Depât 2008) (citation omitted). â[Tlhe Supreme Court has the discretion to accept law
office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a âdetailed
and credibleâ explanation of the default or defaults at issue.â Swensen v. M V Transp.. Inc., 89
A.D.3d 924, 925 (2d Depât 201 1) (parenthetical citation in original), auotine, H e m v. Kuveke, 9
A.D.3d 476, 479 (2d Depât 2004). âConclusory and perfunctoryâ claims of law office failure,
however, shouldberejected. Pichardo-Garcia v. Josephineâs Spa Corp., 91 A.D.3d413,413-14 (1st
Depât 2012); Perez v. New York City Hous. Auth., 47 A.D.3d 505, 505-06 (1st Depât 2008).
Further, the court should reject claims of law office failure if the conduct is part of a willful,
neglectful, or dilatory pattern. Youni Gems Corn. v. Bassco Creations Inc., 70 A.D.3d454,455 (1st
Depât 2010); Perez, 47 A.D.3d at 506; Santiago v. N.Y.C. Health & Hosps. Corp., 10 A.D.3d 393,
394 (2d Depât 2004).
Mr. Silasâ explanation for his failure to appear on the return date of defendantsâ
motion essentially boils down to law office failure. Although the record establishes that Mr. Masâ
failure to appear on November 15 was not an isolated event, based on the evidence presented, it
cannot be said that Mr. Masâ conduct was intentional or willful.
See Hageman v. Home Depot
U.S.A.. Inc., 25 A.D.3d 760,761 (2dDepât 2006); Girondav. Katzen, 19 A.D.3d 644,645 (2dDepât
2005). That Mr. Silasâ conduct was neither intentional nor willful is underscored by the fact that he
did file opposition papers to the motions; the default only arose out of his failure to appear for oral
argument. Further, âthe relatively short period between default and the motion to vacate contrasts
with any pattern of dilatory conduct or [plaintiffsâ] intention to abandon [their case.]ââ Mutual
Marine Office, Inc. v. Joy Constr. Corp., 39 A.D.3d 417,419 (1st Depât 2007). Thus, plaintiffs have
proffered an explanation for their default to sufficient to constitute a reasonable excuse.
Accordingly, plaintiffsâ motion to vacate their default shall be granted. Consequently,
the court vacates the decision and order on Sequence 013-0 16, dated November 16,201 1, which
granted defendantsâ respective motions on plaintiffsâ default, and restores those motions, During
oral argument on Sequence 0 17 on February 7,2012, the court asked the parties whether they wanted
to submit additional papers with respect to Sequence 013-016, and the parties declined to submit
In Sequence 0 13, Dr. Moskowitz moves for an order, pursuant to C.P.L.R. Rule 3212,
dismissing plaintiffsâ complaint with prejudice for plaintiffsâ failure to comply with a conditional
order of preclusion dated May 31,201 1; pursuant to C.P.L.R. 44 3101 and 3126, and Rule 3124,
dismissing plaintiffsâ complaint with prejudice, based upon plaintiffsâ willful failure to comply with
discovery demands and multiple court orders; and, pursuant to 22 N.Y.C.R.R. 0 130-1.1, sanctioning
plaintiffsâ counsel for his conduct in the instant matter. Also i Sequence 013, Andrew Gardntr,
M.D. sMa Andrew Gardner and NYU Hospitals Center (âNYUâ) cross-move for relief similar to
that which Dr. Moskowitz seeks. In Sequence 014, 015, and 016, Corinthian OB/GYN, P.C.
(âCorinthianâ), Cecilia Schmidt-Sarosi and Offices for Fertility and Reproductive Medicine, P.C.,â
and Ms. Cohen, respectively, move for relief similar to that which Dr. Moskowitz seeks and adopt
the arguments that he made in Sequence 013.
The discovery process has dragged in this matter; this is amply demonstrated in
defendantsâ motions. From the courtâs review of the motions, there has been a confluence of issues
Cecilia Schmidt-Sarosi and Offices for Fertility and Reproductive Medicine, P.C.
submitted both a cross-motion on Sequence 01 3 and a separate motion on Sequence 0 15; both
seek the same relief.
that have derailed the discovery period in this matter, including, but not limited to, the nature of the
action and plaintiffsâ attempts to expand their action beyond that which is permitted for an action
sounding in wrongful birth; the number of parties named as defendants and the number of attorneys
involved; plaintiffs having started the case being representedby Gair Gair, then proceeding pro se for
a lengthy period, and now being represented by a second attorney; and plaintiffs having provided
discovery that is inadequate, unresponsive, and/orlate, or having failed to provide certain discovery
at all. For instance, one of the longstanding issues in discovery in this matter has been plaintiffsâ
failure to comply with numerous demands and court orders to furnish each defendant with a bill of
particulars that specifies the negligence alleged and that is particular to that defendant. A second
issue has been plaintiffsâ ongoing failure to furnish defendants with authorizations to obtain
treatment records related to their son and their financial records, since this wrongful birth action is
premised on special damages.
See Bani-Esraili v. Lerman, 69 N.Y.2d
807, 808 (1987) (in a
wrongful birth action, plaintiffs âmay be compensated only in the amount that represents [their]
legally cognizable injury, namely the increased financial obligation arising from the extraordinary
medical treatment rendered [to] the child during minority.â). Indeed, the period for exchanging
paper discovery in this case has taken so much time that the depositions of the plaintiffs still have
not been completed. Suffice it to say, it has been a frustrating process for all of the parties, and for
the court, to marshal and organize discovery in this matter.
On May 3 1, 201 1, after years of delay, the court issued a conditional order of
preclusion. Within ten (1 0) days of the date of the order, plaintiffs were to provide defendants with:
(1) responses to defendantsâ demands for: copies of all documents
in connection with Mr. Marguliesâ bankruptcy filing in 2010, any
prior bankruptcy filings by Mr. Margulies, andor any bankruptcy
filings by Ms. Margulies; copies of all divorce papers, filings, orders
andor agreements between Mr. and Ms. Margulies; authorizations to
obtain the financial records for all checking and savings accounts held
by Mr. Margulies, Ms. Margulies, or jointly, from March 2005
through July 2006 (or, the time that plaintiffs were residing in North
Carolina); and authorizations to obtain the financial records for all
checking and savings accounts held by held by Mr. Margulies, Ms.
Margulies, or jointly, that were used to pay credit card bills or
statements for credit cards used to pay for costs related to Benjamin;
(2) copies of all separation & divorce agreements or decrees;
(3) any outstanding discovery from a conference order dated March
15, 201 1, including copies of tax returns for Camille & George
Hlinko for years that plaintiffs are claiming âhome care and
babysittingâ and âmeals and lodging; copies of all correspondence
between plaintiffs and Aetna Insurance Company relative to treatment
for Benjamin (per June 15, 2010 order); authorizations to obtain
Benjaminâs records from all physicians and therapists who treated
Benjamin in New York, all pharmacies in New York where plaintiffs
filled Benjaminâs prescriptions, all medical equipment or supply
companies, all home health agencies, all social service agencies in
New York, Benjaminâs pediatrician, Dr. Wang, Craig Davis, a
pediatric neurologist in North Carolina, Human Genetics, Jefferson
Neurogenetics, and all physical therapists; and information
concerning the way in which charitable donations were maintained
The order set forth that plaintiffsâ failure to provide the above within ten (10) days of the order
would result in their being precluded from offering evidence of economic and special damages at
the time of trial.
Defendants argue that plaintiffs failed to comply with the conditional order of
discovery because they failed to provide copies of correspondence between plaintiffs and Aetna
Insurance Company (âAetnaâ); information concerning the way in which charitable donations were
maintained for Benjamin; copies of tax returns for Camille and George Hlinko (Ms. Marguliesâ
parents); copies of documents with respect to their divorce; and authorizations for all physicians,
therapists, pharmacies, medical equipment and supply companies, pediatricians, home health
agencies, social service agencies, plaintiffsâ employment records, Dr. Wang, and Craig Davis.
Plaintiffs argue that they complied with the conditional order of preclusion. As to
the Aetna records, plaintiffs maintain that on June 12, 2008, they provided defendants with
authorizations to obtain these records. Additionally, in response to this motion, they attach copies
of some correspondence between Aetna and themselves that they maintain they only found a few
days prior to opposing the motion while cleaning out a space in their home.3 As to the information
concerning the way in which charitable donations were maintained, plaintiffs maintain that on June
12, 2008, and June 26, 2008, they provided defendants with authorizations to obtain account
information for the Pay-Pal account that plaintiffs set up for the purpose of receiving donations from
people who wanted to support them in their struggle against Aetna. Additionally, plaintiffs argue
that the issue regarding donations has been distorted; that at no time did they solicit donations to help
with their sonâs care, rather, Ms. Marguliesâ brother established a website and a way to make
donations; that the donations amounted to a little over $2,000; and that the donations were neither
tax-deductible nor considered âcharitable.â As to the copies of tax returns for Camille and George
Hlinko, plaintiffs maintain that on April 4,20 11, they provided defendants with IRS form 4506-EZY
Defendants ask the court to disregard plaintiffsâ personal affidavit because it is not in
proper form. But, the affidavit contains an attestation that it was made under penalties of perjury
and attached is a notarized statement, dated October 10,2011, that plaintiffs have read and know
the contents of the affidavit and the truth thereof. Accordingly, the court will consider plaintiffsâ
authorizing each defendant to obtain the tax records for the Hlinkos from 2006 through 2009. As
to any separation or divorce agreements or decrees, plaintiffs assert that they responded to that part
of the order by stating that they had no such documents in their possession, and providing the index
number for the divorce. As to the authorizations for HIPAA information, plaintiffs maintain that
throughout the litigation, they provided defendants with authorizations for a number of entities
andor physicians, including Dr. Peter Weseley; Dr. Alan Dayan; Dr. Uri Shabato; Dr. Frank
Roberto; Eckerd, Walgreen, and Duane Reade pharmacies; NYU Human Genetics; LU Medical
Center; âMontefiore MC Weeler College,â Montefiore Childrenâs Hospital, and Montefiore H&L
Moses Division; Franklin Hospital; St. Maryâs Hospital for Children; Retinal Consultants and NYC
Early Intervention Program; Jake Kreindler, Karin Ballaban, Dr. Cynthia Tim, and Jefferson
Neurogenttics; and Manatech. Plaintiffs assert that all physician, pharmacy, hospital, and therapy
authorizations have been provided. They further maintain that they have not been able to identify
treaters Dr. Wang or Craig Davis, which is why they have not provided authorizations as to them.
They assert that authorizations for employment records were previously provided.
In reply, defendants first ask the court to reject plaintiffsâ opposition as untimely,
because, per the partiesâ stipulation, plaintiffs were to have served their opposition papers by first
class mail no later than October 11, 20 1 1, but instead, plaintiffsâ attorney personally served the
opposition papers on October 14,201 1.4 The court notes that had plaintiffs served the papers by mail
on October 11, 201 1, it is likely that defendants would have received the papers a few days later.
â Ms. Cohen asserts that she found the papers on her front porch on October 17,201 1,
though the date they arrived at her home is unclear. Since this incident, the parties have agreed
that Ms. Cohen shall be served by mail in the same manner as the other defendants.
Thus, while plaintiffsâ attorney failed to comply with his obligation to mail the papers no later than
October 11,20 11, the delay attributable to plaintiffsâ attorneyâs failure is & minimus. Moreover,
defendants articulated no prejudice from the delay. Accordingly, the court will consider plaintiffsâ
Defendants also argue that plaintiffsâ responses are insufficient and that they have yet
to fully comply with the May 3 1, 201 1 conditional preclusion order. Specifically, defendants
maintain that plaintiffs failed to provide any response to that branch of the conditional order which
directed them to provide copies of all correspondence between themselves and Aetna, information
concerning the way in which charitable donations were maintained for their son, and authorizations
for Dr. Wang, Craig Davis, or all home health agencies or social service agencies in New York.
Further, defendants maintain that to the extent plaintiffs did respond, their responses were piecemeal
I find that plaintiffs substantially complied with the conditional preclusion order so
as to avoid preclusion. Even though defendants are entitled to copies of documents in plaintiffsâ
possession, it was appropriate for plaintiffs to provide them with authorizations to obtain copies of
the documents themselves, as in the case of the tax returns for the Hlinkos and the records from
Aetna. Further, aside from Dr. Wang and Craig Davis, defendants have not articulated the specific
providers or entities for which authorizations remain outstanding. The harsh remedy of preclusion
is not warranted. However, it was not responsive for plaintiffs to simply provide defendants with
the index number to their divorce while asserting that they are not in possession of documents related
to their divorce; they must obtain copies of these documents from their divorce attorneys or the
county clerk file and exchange them with defendants. Additionally, since on reply, defendants
provided plaintiffs with direct references to medical records indicating that Dr. Wang is an
ophthalmologist who treated Benjamin in New York and that Craig Davis is a physician at Duke
University, plaintiffs shall provide defendants with authorizations for these physicians.
Defendants also argue that plaintiffsâ case should be dismissed on the grounds that
they repeatedly failed to comply with discovery demands and court orders. They argue that they
have never received bills of particulars specific to each defendant individually, and that plaintiffs
failed to comply with other discovery demands and orders. Plaintiffsâ compliance with discovery
demands and orders has been haphazard. However, plaintiffs have provided a lot of the discovery
that defendants have sought, and it is unclear from defendantsâ papers-aside
listed above and the bills of particulars-what
from that which is
else, exactly, remains outstanding. Plaintiffsâ most
egregious failure has been not providing defendants with appropriate bills ofparticulars. They argue
that it is hard to differentiate between the defendants until the depositions have been conducted, but
n careful review of the medical records by plaintiffs and their attorney should aid them in this
endeavor, and it is a requirement for continuing the litigation. While I do not find plaintiffsâ conduct
willful or contumacious, it is time to rein in any outstanding discovery in this case.
Defendants seek sanctions under 22 N.Y.C.R.R.130-1.1, for Mr. Silasâ frivolous
conduct in failing to appear at court conferences, appearing late for court conferences, and for
mailing papers to Dr. Moskowitz at improper addresses on more than one occasion.
Notwithstanding the third issue, defendantsâ request would be more appropriately brought not under
22 N.Y.C.R.R. 5 130-1.1 but under 22 N.Y.C.R.R. 4 130-2.1, which sets forth that the court, i its
discretion, may impose financial sanctions and/or award costs upon any attorney who, without good
cause, fails to appear at a time and place scheduled for an action or proceeding to be heard before
a designated court. Mr. Silasâ failure to timely appear or appear at all at conferences is the behavior
of which defendants are complaining and there is support in the record for a successful motion under
4 130-2.1. However, Mr. Silasâ conduct does not fit into the categories for Sanctions
under Section 130-1.1, &, conduct that is completely without merit in law, that is undertaken
primarily to delay or prolong the litigation or harass or malicious injure another, or that asserts false
material factual statements. Accordingly, those branches of Sequence 0 13-016 seeking sanctions
under Section 130-1.1 are denied, with leave to bring a motion for costs andor sanctions under
ORDERED that plaintiffsâ motion (Sequence 017) is granted, their default is vacated,
and the motions in Sequence 013-016 are reopened; and it is further
ORDERED that those branches ofdefendantsâ respective motions in Sequence 0130 16 seeking summaryjudgment or dismissal of the action are denied, for the reasons set forth above;
and it is further
ORDERED that within twenty (20) days of service of a copy of this order with notice
of entry, plaintiffs shall furnish defendants with bills of particulars specific to the individual
defendants, copies of any agreements or decrees pertaining to their separation or divorce, and
authorizations permitting defendants.toobtain records from Dr. Wang and Craig Davis; and it is
ORDERED that the parties shall appear on May 15,2012, at 1O:OO am., for a status
conference, prepared to address my outstanding discovery not specifically addressed herein; and it
ORDERED that those branches of defendantsârespective motions i Sequence 013n
016 seeking sanctions under 22 N.Y.C.R.R.130-1.1
denied without prejudice to defendants
bringing a motion seeking costs or sanctions for Mr. Silasâ failure to appear or his untimely
appearances at a number of court conferences under 22 N.Y.C.R.R Q 130-2.1.
Dated: April 9 , 2 0 1 2
COUNTY CLERKS OFFICE