Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/04/McNelis-v-Thomas-2019-NY-Slip-Op-02861-1.pdf">McNelis v Thomas (2019 NY Slip Op 02861)</a></em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/04/McNelis-v-Thomas-2019-NY-Slip-Op-02861.pdf"></a><em>, </em>the Appellate Division reaffirmed its tough stance on the recurring problem of dilatory discovery responses and disregard for the Court’s discovery Orders.</p>
<p style="text-align: justify;">The plaintiff, John McNelis, filed a personal injury lawsuit in Queens County Supreme Court.  A preliminary conference was held and an Order directed the plaintiff to provide the identify of medical providers the plaintiff treated with as a result of the accident, and for prior treatment received for conditions allegedly aggravated by the accident.  The plaintiff did not respond.  Two subsequent Orders were issued by the Court directing the plaintiff to provide this discovery.</p>
<p style="text-align: justify;">Thereafter, the plaintiff served a response to the defendants' demand for authorizations.  But the plaintiff's response included an affidavit stating that he had conducted an unsuccessful search for the names and addresses of his medical providers and had not located any documents which would refresh his recollection as to the names of, among others, his physicians, pharmacies, or insurers. Therefore, the plaintiff could only provide authorizations for three of the 16 items demanded. When the defendants objected to this response, the plaintiff replied that he was "not required to be the investigative agency' for the defense," and that he would sign authorizations if the defendants identified his providers.</p>
<p style="text-align: justify;">The defendant filed a motion to dismiss the Complaint based upon the plaintiff’s refusal to provide the discovery and in disregard to the Court’s Orders.  Queens County Supreme Court granted the motion pursuant to CPLR 3126, 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 court may, inter alia, strike that party's pleadings or portions thereof.”</p>
<p style="text-align: justify;">The plaintiff appealed to the Appellate Division, Second Department.  In its decision, the Appellate Division affirmed the Order dismissing the Complaint, and held "Although courts should resolve actions on the merits when possible, a court may strike [a pleading] upon a clear showing that [a party's] failure to comply with a disclosure order was the result of willful and contumacious conduct."</p>
<p style="text-align: justify;">Applying this standard, the Appellate Division found that the plaintiff provided no excuse for his repeated failure, over a period of more than two years, to comply with the Supreme Court's orders directing the disclosure of the names of his medical providers and authorizations to obtain medical records. The plaintiff's belated response that he could not recall the names of his providers and could not find records to refresh his recollection, even as to the names of current providers, was not a reasonable excuse for his failure to comply with the court-ordered disclosure.</p>
<p style="text-align: justify;">In conclusion, the Appellate Division held that the Supreme Court providently exercised its discretion by granting the sanction of striking the Complaint.</p>
<p style="text-align: justify;">Thanks to George Parpas for his contribution to this post. Please email <a href="mailto:VTerrasi@WCMLaw.com">Vincent F. Terrasi</a> with any questions.</p>