Marvin Gibbs v. St. Barnabas Hospital
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 224
Marvin Gibbs,
Respondent,
v.
St. Barnabas Hospital,
Respondent,
Fausto Vinces, M.D.,
Appellant,
Scott Russo, M.D., et al.,
Defendants.
Jacqueline Mandell, for appellant.
Denise A. Rubin, for respondent Gibbs.
William D. Buckley, for respondent St. Barnabas
Hospital.
GRAFFEO, J.:
In this medical malpractice action, plaintiff failed to
serve a supplemental bill of particulars before the deadline set
by a conditional order of preclusion.
Consistent with our
precedent, we conclude that the trial court erred as a matter of
law in excusing the default without requiring plaintiff to
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No. 224
establish both a reasonable excuse for his noncompliance and a
meritorious cause of action.
In June 2005, plaintiff Marvin Gibbs commenced this
medical malpractice action against a number of defendants,
including Dr. Fausto Vinces.
The claim arose out of treatment
plaintiff received for his right hip while a patient at defendant
St. Barnabas Hospital.
In August 2005, Dr. Vinces served
plaintiff with an answer, various disclosure demands and a demand
for a bill of particulars within 30 days, as authorized by CPLR
3042.
When there was no response after 30 days, Dr. Vinces'
counsel sent plaintiff a letter on January 24, 2006 requesting
that a bill of particulars be provided within 10 days "or we will
have no alternative but to move to compel production of same."
The following day, Dr. Vinces' counsel notified plaintiff that he
had not yet satisfied a number of the other discovery demands as
well.
Plaintiff failed to reply to either letter.
Dr. Vinces'
attorney again issued a letter on March 21, 2006 seeking the bill
of particulars and warning that court intervention would be
necessary if plaintiff failed to comply.
forthcoming from plaintiff.
Again, no response was
On May 24, 2006, Dr. Vinces'
attorney forwarded plaintiff yet another letter demanding a bill
of particulars and the production of other disclosure items
within 10 days.
Plaintiff did not request an extension of time
to respond or in any way reply to these multiple requests.
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No. 224
As a result, in June 2006, Dr. Vinces moved to compel
plaintiff to comply with the demand for a bill of particulars and
the discovery demands, and requested that the court sanction
plaintiff under CPLR 3042 and 3126 by dismissing the complaint or
precluding plaintiff from offering evidence at trial regarding
Dr. Vinces' alleged negligence.
Plaintiff finally served a bill
of particulars in August 2006, one year after the doctor's
initial demand.
Dr. Vinces agreed to withdraw his motion, even
though a number of other discovery items remained outstanding.
At a preliminary conference conducted in November 2006,
Supreme Court determined that plaintiff's bill of particulars was
"unsatisfactory" and directed plaintiff to furnish a supplemental
bill of particulars within 30 days clarifying, among other
things, the specific allegations of negligence against Dr.
Vinces.
Plaintiff did not supply the supplemental bill and, in
January 2007, Dr. Vinces moved pursuant to CPLR 3126 to strike
the complaint or foreclose plaintiff from submitting evidence of
negligence at trial based on plaintiff's willful noncompliance.
Supreme Court conditionally granted the motion and
issued a conditional preclusion order on February 21, 2007,
stating that plaintiff would be barred from offering evidence as
to Dr. Vinces' negligence if plaintiff did not serve the
supplemental bill of particulars within 45 days.
Although Dr.
Vinces sent a reminder letter to plaintiff on March 7, 2007,
plaintiff did not submit a supplemental bill before the court-
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No. 224
imposed deadline, nor did plaintiff request an extension of time
to respond or otherwise seek relief prior to the expiration of
plaintiff's time to comply under the terms of the order.
Consequently, in May 2007, Dr. Vinces moved to enforce
the conditional order of preclusion and for summary judgment
dismissing the complaint as against him on the basis that
plaintiff could no longer supply any evidence of negligence under
the order, which became absolute when plaintiff failed to comply
with its terms.
Plaintiff served a supplemental bill of
particulars in June 2007, approximately 75 days after the
deadline specified in the preclusion order.
In opposition to the motion to enforce the conditional
preclusion order, plaintiff asserted that Dr. Vinces had received
the supplemental bill of particulars and therefore could not
demonstrate prejudice.
Plaintiff further acknowledged that "a
defaulting party can be relieved of preclusion on the showing of
a meritorious claim and a reasonable excuse for the delay" and
claimed that he had met those requirements.
In particular,
plaintiff's counsel submitted an affirmation explaining that the
untimely supplemental bill of particulars was the result of
"inadvertent law office failure" because a different attorney
from the law firm had attended the prior court proceeding that
resulted in the February 21, 2007 conditional preclusion order
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No. 224
and the expiration date had not been diaried on her calendar.1
Rather than providing an affidavit of merit to satisfy the second
prong of the requisite showing -- the meritorious claim -plaintiff claimed that Dr. Vinces' "motion does not suggest that
plaintiff does not have a meritorious claim."
Supreme Court granted Dr. Vinces' motion but only to
the extent of directing plaintiff to pay $500 as costs for his
delay in complying with discovery.2
The Appellate Division, with
one Justice dissenting, affirmed (61 AD3d 599 [1st Dept 2009]).
The majority concluded that the trial court did not abuse its
discretion in declining to enforce the conditional preclusion
order.
The dissenter would have enforced the order and granted
Dr. Vinces summary judgment, reasoning that the trial court erred
in relieving plaintiff of his default without requiring him to
demonstrate a reasonable excuse and a meritorious claim.
The
Appellate Division granted Dr. Vinces leave to appeal and
certified the following question to this Court: "Was the order of
this Court, which affirmed the order of the Supreme Court,
properly made?"
We answer this question in the negative.
1
Plaintiff's counsel, for the first time, also claimed
that plaintiff's expert could not further amplify the allegations
of negligence contained in the original bill of particulars.
2
Plaintiff suggests that Supreme Court in effect
reconsidered its prior conditional preclusion order. Although
the trial judge was entitled to reconsider the order, we will not
assume she reconsidered it when there was no request to do so and
no indication that she treated it as such.
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No. 224
Under CPLR 3042 (d), a court may invoke the relief set
forth in CPLR 3126 when a "party served with a demand for a bill
of particulars willfully fails to provide particulars which the
court finds ought to have been provided pursuant to this rule."
CPLR 3126, in turn, governs discovery penalties and applies where
a party "refuses to obey an order for disclosure or wilfully
fails to disclose information which the court finds ought to have
been disclosed."
The statute contains a list of nonexclusive
sanctions and further permits courts to fashion orders "as are
just."
CPLR 3126 therefore broadly empowers a trial court to
craft a conditional order -- an order "that grants the motion and
imposes the sanction 'unless' within a specified time the
resisting party submits to the disclosure" (Connors, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10
["The conditional order is in fact the most popular disposition
under CPLR 3126"]; see also CPLR 3042 [d]).
The situation that developed in this case is,
unfortunately, a scenario that we have seen before.
In Fiore v
Galang (64 NY2d 999 [1985], affg 105 AD2d 970 [3d Dept 1984]), a
medical malpractice action, the trial court granted a 30-day
conditional order of preclusion directing plaintiffs to serve a
bill of particulars on the defendant hospital.
Following
plaintiffs' lack of compliance with the order, the hospital moved
for summary judgment dismissing the complaint.
The trial court
denied the motion on the condition that plaintiffs serve a bill
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No. 224
of particulars and pay $415 to the hospital's attorneys.3
On
appeal, the Appellate Division reversed and dismissed the
complaint, concluding that the trial court erred in excusing the
default without requiring plaintiff to offer both a reasonable
excuse and an affidavit of merit.
We affirmed, explaining that
"absent an affidavit of merits it was error, as a matter of law,
not to grant defendant Hospital's motion for summary judgment"
(id. at 1000 [emphasis added]).
Hence, we have made clear that to obtain relief from
the dictates of a conditional order that will preclude a party
from submitting evidence in support of a claim or defense, the
defaulting party must demonstrate (1) a reasonable excuse for the
failure to produce the requested items and (2) the existence of a
meritorious claim or defense (see id. at 1000-1001; see
also Smith v Lefrak Org., 96 AD2d 859 [2d Dept 1983], affd for
reasons stated 60 NY2d 828 [1983]; Amodeo v Radler, 89 AD2d 594
[2d Dept 1982], affd 59 NY2d 1001 [1983]).
In cases involving a
medical malpractice cause of action, "expert medical opinion
evidence is required to demonstrate merit" under the second
requirement (Fiore, 64 NY2d at 1001).
Consistent with Fiore, all four departments of the
Appellate Division have required plaintiffs to satisfy the twoprong test in cases involving conditional orders that were
3
It is interesting to note that in 1984, the trial court
in Fiore ordered a monetary sanction of $415 and, 25 years later,
a $500 sanction was determined to be sufficient in this case.
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No. 224
triggered by failures to submit a bill of particulars by courtimposed deadlines (see Goldstein v Janecka, 172 AD2d 463 [1st
Dept 1991]; Gilmore v Garvey, 31 AD3d 381 [2d Dept 2006]; Clanton
v Vagianellis, 192 AD2d 943 [3d Dept 1993]; Foster v Dealmaker,
SLS, LLC, 63 AD3d 1640 [4th Dept 2009], lv denied 15 NY3d 702
[2010]).
In this case, the Appellate Division majority's
analysis overlooked the two-part test in determining that Supreme
Court's decision not to enforce the preclusion order was not an
abuse of discretion warranting reversal.
We certainly understand
the Appellate Division's concern that courts be permitted to
exercise discretion in the pretrial management of their
caseloads, particularly when resolving disputes between parties
involving the adequacy of pleadings and the use of discovery
devices.
But there is also a compelling need for courts to
require compliance with enforcement orders if the authority of
the courts is to be respected by the bar, litigants and the
public.
Here, approximately one year elapsed from the date of
the initial demand for a bill of particulars to the service of
the bill of particulars that was eventually found by Supreme
Court to be inadequate.
During that year, despite Dr. Vinces'
written requests for compliance, plaintiff apparently ignored the
applicable statutory time periods, without taking the simple step
of contacting the opposing party to ask for an extension or
seeking the assistance of Supreme Court to clarify or modify the
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No. 224
And, even after Supreme Court determined that a
supplemental bill was necessary, another seven months passed
before that document was forthcoming -- and its service was 75
days after the due date specified in the order of preclusion.
Again, no attempt was made to request an extension or seek some
form of relief from the court prior to the expiration of time
period set forth in the order.
As this Court has repeatedly emphasized, our court
system is dependent on all parties engaged in litigation abiding
by the rules of proper practice (see e.g. Brill v City of New
York, 2 NY3d 648 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]).
The failure to comply with deadlines not only impairs the
efficient functioning of the courts and the adjudication of
claims, but it places jurists unnecessarily in the position of
having to order enforcement remedies to respond to the delinquent
conduct of members of the bar, often to the detriment of the
litigants they represent.
Chronic noncompliance with deadlines
breeds disrespect for the dictates of the Civil Practice Law and
Rules and a culture in which cases can linger for years without
resolution.
Furthermore, those lawyers who engage their best
efforts to comply with practice rules are also effectively
penalized because they must somehow explain to their clients why
they cannot secure timely responses from recalcitrant
adversaries, which leads to the erosion of their attorney-client
relationships as well.
For these reasons, it is important to
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adhere to the position we declared a decade ago that "[i]f the
credibility of court orders and the integrity of our judicial
system are to be maintained, a litigant cannot ignore court
orders with impunity" (Kihl, 94 NY2d at 123).
All of these concerns are implicated in this case,
which is not difficult to resolve since our 1985 decision in
Fiore is clearly controlling.
When plaintiff failed to satisfy
Supreme Court's November 2006 order directing him to supply a
supplemental bill of particulars within 30 days, the court
afforded plaintiff a final opportunity to comply by conditionally
granting Dr. Vinces' motion to preclude on February 21, 2007,
giving plaintiff 45 days to serve the supplemental bill.
Upon
default, plaintiff was obligated to provide a reasonable excuse
and an expert affidavit to avoid the consequences of the
preclusion order.
Even assuming for the sake of argument that
plaintiff's excuse of law office failure was reasonable -- a
finding not made by Supreme Court or the Appellate Division
majority -- plaintiff failed to submit an affidavit from a
medical expert establishing the basis of the alleged medical
malpractice claim.
This deficiency is fatal under Fiore.
Given
that the preclusion order prevents plaintiff from offering any
evidence in support of his claim that Dr. Vinces committed
malpractice, summary judgment in Dr. Vinces' favor, as a matter
of law, should have been awarded.
Finally, we reject plaintiff's premise, accepted by the
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No. 224
dissent, that the conditional preclusion order should not be
enforced because plaintiff's conduct during the discovery process
was not "willful."
It is true that CPLR 3042 requires a finding
of willfulness where a party fails to respond to or comply fully
with a demand for a bill of particulars, and that CPLR 3126
prescribes a similar willfulness element where a party "fails to
disclose information which the court finds ought to have been
disclosed."
But here plaintiff did not just fail to comply with
a demand, he disregarded court orders.
In such a situation:
"The courts usually prefer to determine
whether the disclosure is required and, if it
is, to make an order directing the party to
make the disclosure whether the prior refusal
was wilful or not. The order is usually a
conditional one, applying a sanction unless
the disclosure is made within a stated time.
With this conditioning, the court relieves
itself of the unrewarding inquiry into
whether a party's resistance was wilful"
(Siegel, NY Prac ยง 367, at 608 [4th ed]).
It is undisputed that plaintiff failed to respond to
Dr. Vinces' periodic demands for a bill of particulars and
various discovery items between August 2005 and August 2006.
Regardless of whether these failures are characterized as
willful, plaintiff also disregarded Supreme Court's November 2006
order obligating him to serve a supplemental bill of particulars
within 30 days.
More importantly, plaintiff did not abide the
dictates of the February 21, 2007 conditional preclusion order.
Upon plaintiff's default, the order became absolute, obligating
him to satisfy the well-established two-part test embraced by
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No. 224
Having failed to do so, Dr. Vinces was
entitled to dismissal of the complaint.
In reaching this conclusion, we reiterate that
"[l]itigation cannot be conducted efficiently if deadlines are
not taken seriously, and we make clear again, as we have several
times before, that disregard of deadlines should not and will not
be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake,
Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5
NY3d 514, 521 [2005]; see also Wilson v Galicia Contr. &
Restoration Corp., 10 NY3d 827, 830 [2008]; Miceli v State Farm
Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill, 2 NY3d at
652-653; Kihl, 94 NY2d at 123).
Accordingly, the order of the Appellate Division should
be reversed, with costs, the motion of defendant Vinces to
enforce the conditional order of preclusion and for summary
judgment dismissing the complaint against him granted, and the
certified question answered in the negative.
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Gibbs v St. Barnabas Hospital, et al.
No. 224
CIPARICK, J.(dissenting):
As the majority notes, CPLR 3042 and 3126 confer broad
discretion on trial courts to craft discovery sanctions.
A court
"may" issue a final or conditional order "as is just" if a party
"willfully fails to provide particulars which the court finds
ought to have been provided" (CPLR 3042 [d]; see also CPLR 3126).
Neither Supreme Court nor the Appellate Division found
that the behavior of plaintiff's counsel was sufficiently
egregious to merit the harsh sanction of preclusion.
To the
contrary, Supreme Court stated that the conduct "was dilatory but
not intentioned and [did] not warrant the extreme measure of
precluding" counsel from presenting plaintiff's case.
The
Appellate Division affirmed, finding "no evidence that
plaintiff's inaction was willful, contumacious, or the result of
bad faith" (Gibbs v St. Barnabas Hosp., 61 AD3d 599, 600 [1st
Dept 2009]).
Thus, although the CPLR makes wilfulness a
prerequisite for preclusion, the majority here is imposing the
sanction where there is an affirmed finding that Gibbs' behavior
was not willful.
Because of this affirmed factual finding, this case is
easily distinguishable from Fiore v Galang (64 NY2d 999 [1985]),
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No. 224
Smith v Lefrak Org. (60 NY2d 828 [1983]), Amodeo v Radler (59
NY2d 1001 [1983]), and other cases cited by the majority.
These
cases establish that, as the majority emphasizes, a defaulting
party must establish reasonable excuse for the delay and provide
an affidavit of merit (see Fiore, 64 NY2d at 1000, affg 105 AD2d
970 [3d Dept 1984]).
They do not alter the CPLR's wilfulness
requirement, nor do they permit us to make a finding of
willfulness and apply a sanction expressly rejected by the courts
below.
I would therefore affirm the Appellate Division's
order.
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Order reversed, with costs, the motion of defendant Vinces to
enforce the conditional order of preclusion and for summary
judgment dismissing the complaint against him granted, and
certified question answered in the negative. Opinion by Judge
Graffeo. Judges Read, Smith and Pigott concur. Judge Ciparick
dissents and votes to affirm in an opinion in which Chief Judge
Lippman and Judge Jones concur.
Decided December 16, 2010
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