# Lucas v. Stam

> Appellate Division of the Supreme Court of the State of New York · February 15, 2017 · 147 A.D.3d 921

URL: https://www.frixlaw.com/law-library/cases/9872187

## Case

- **Full name:** Shavonn Lucas, as Administrator of the Estate of Andre Wright, Deceased, Appellant-Respondent, v. Lawrence Stam Et Al., Defendants, and Susan Gordon Et Al., Respondents-Appellants. Martin Clearwater & Bell, LLP, Nonparty Respondent-Appellant
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** February 15, 2017
- **Citations:** 147 A.D.3d 921; 48 N.Y.S.3d 150; 2017 NY Slip Op 1190
- **Precedential status:** Published
- **Opinion:** Concurrence by Roman
- **Judges:** Roman, Hall, Austin, Barros
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Roman, J.,
concurs in part and dissents in part, and votes to affirm the amended order dated April 4, 2014, insofar as appealed and cross-appealed from, and affirm the order dated November 12, 2014, insofar as appealed and cross-appealed from, with the following memorandum: I find that the drastic sanction of striking the answers of the defendants Susan Gordon, Pawan Bhatnagar, William M. Schiff, and New York Presbyterian Hospital Columbia University Medical Center (hereinafter collectively the defendants) was not warranted *928 under the circumstances of this case. Therefore, I respectfully dissent on this ground.
In the amended order dated April 4, 2014, the Supreme Court found that the defendants had served affidavits from Schiff that did not comply with the court’s directives, and failed to properly provide the names and locations of the surgical book-ers employed by the defendants at the time of the decedent’s surgery. However, the court declined to strike the defendants’ answers and, instead, imposed monetary sanctions, noting the public policy favoring resolution of cases on the merits. In the order dated November 12, 2014, the court, inter alia, denied that branch of the plaintiff’s motion which was pursuant to CPLR 2221 for leave to renew that branch of the plaintiff’s prior motion which was to strike the defendants’ answers, and denied the cross motion of the defendants and the defendant Columbia Ophthalmology Consultants pursuant to 22 NYCRR 130-1.1 to impose sanctions upon the plaintiff’s counsel for engaging in frivolous conduct.
“Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court” (Isaacs v Isaacs, 71 AD3d 951, 952 [2010]; see Morales v Zherka, 140 AD3d 836 [2016]). However, “[t]he striking of a party’s pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious” (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201 , 210 [2012]; see Lomax v Rochdale Vil., Inc., 76 AD3d 999 , 999 [2010]). Furthermore, “[p]ublic policy strongly favors the resolution of actions on the merits whenever possible” (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210; see Krause v Lobacz, 131 AD3d 1128, 1129 [2015]; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2010]). It is within the discretion of the Supreme Court to impose a monetary sanction pursuant to CPLR 3126 to compensate a party for the time expended and costs incurred in connection with an opposing party’s failure to comply with court-ordered discovery (see Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d at 801 ; Messer v Keyspan Energy Delivery, Inc., 56 AD3d 738 , 739 [2008]).
Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was to strike the defendants’ answers solely to the extent of imposing monetary sanctions, and properly denied that branch of the plaintiff’s separate motion which was pursuant to CPLR 2221 for leave to renew that application. The record reflects that the *929 defendants substantially, albeit tardily, complied with the court’s directive in providing an affidavit from Schiff (see ACME ANC Corp. v Read, 55 AD3d 854, 855 [2008]). Additionally, as noted by the court, the plaintiff ultimately ascertained the names and locations of the surgical bookers who were working at the time of the decedent’s surgery, and their depositions have been held. Moreover, certain of the plaintiff’s discovery requests were overbroad (see Scorzari v Pezza, 111 AD3d 916, 916-917 [2013]), which contributed to the delay in this matter.
Furthermore, there is no indication in the record that the individual physician defendants were involved in any willful misconduct with respect to complying with the discovery demands and court orders (cf. Vieda v Otro Rollo Tropical, Inc., 108 AD3d 695, 696 [2013]). As the majority points out, where necessary, parties may be held responsible for the failure of their lawyers to provide meaningful responses to discovery demands and court orders (see Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 207-208). However, “dismissal is a harsh penalty imposed on a client for his [or her] lawyer’s failures” (7-3216 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3216.23 [internal quotation marks omitted]; see Moran v Rynar, 39 AD2d 718, 719 [1972]), and in certain cases, it may be appropriate to impose a penalty upon the attorney for his or her conduct while saving the action for the client (see Paoli v Sullcraft Mfg. Co., 104 AD2d 333, 334 [1984]; Moran v Rynar, 39 AD2d at 719 ).
The piecemeal disclosure of the surgical bookers by the defendants’ attorneys should not be condoned. Nevertheless, under the circumstances of this case, and considering the strong public policy favoring resolution of cases on the merits, it cannot be said that the Supreme Court improvidently exercised its discretion in declining to strike the defendants’ answers and, instead, imposing monetary sanctions to compensate the plaintiff for the time expended and costs incurred in connection with the conduct of the defendants’ attorneys (see Enoch v City of New York, 109 AD3d 459 , 459 [2013]; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d at 801 ; Makris v Westchester County, 21 AD3d 931, 932 [2005]; O’Neill v Ho, 28 AD3d 626, 627 [2006]).
In all other respects, I agree with the majority’s determinations.
Accordingly, I would affirm the amended order dated April 4, 2014, insofar as appealed and cross-appealed from, and affirm *930 the order dated November 12, 2014, insofar as appealed and cross-appealed from.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9872187. Public record. Not legal advice.