The New York Law Journal reported a “drastic sanction” against a medical malpractice defense firm today in Lucas v Stam  2017 NY Slip Op 01190  Decided on February 15, 2017  Appellate Division, Second Department.

“This medical malpractice action arises from ophthalmological surgery performed on September 5, 2007, on the plaintiff’s decedent by the defendant William M. Schiff, a vitreoretinal surgeon, at the Harkness Eye Institute, which is owned and operated by the defendant New York Presbyterian Hospital Columbia University Medical Center (hereinafter the Hospital). The plaintiff alleges that prior to the surgery, a surgical booker working at the Hospital gave the decedent a history and physical form to provide to his internist, the defendant Lawrence Stam, in order to obtain medical clearance for the surgery. The form, which was partially completed by the surgical booker, indicated that the surgery was going to take place under local anesthesia. Stam wrote on the form that the decedent was a “moderate risk for surgery,” and under the preprinted portion of the form stating, “Patient is in satisfactory condition for local/standby anesthesia,” Stam wrote, “yes.” The plaintiff alleges that the surgery was performed on both eyes under general anesthesia, and that the surgery lasted approximately seven hours. As a result of the surgery having been performed under general anesthesia, the decedent allegedly suffered a major stroke and other injuries.”

“We agree with the plaintiff that, under the circumstances, the Supreme Court improvidently exercised its discretion by imposing monetary sanctions upon the defendants and Martin Clearwater instead of striking the defendants’ answers.

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders (see Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d 1133, 1134; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d 680, 681; Montemurro v Memorial Sloan-[*3]Kettering Cancer Ctr., 94 AD3d 1066, 1066). This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 207-208; see Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521; Kihl v Pfeffer, 94 NY2d 118, 123).”

“”The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court” (Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1133; see Wolf v Flowers, 122 AD3d 728, 728; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 209). Even so, the Appellate Division ” is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse'” (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 209, quoting Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845). In determining the appropriate sanction to impose, we are guided by CPLR 3126, which permits courts to, among other things, “order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order” (CPLR 3126[1]), issue a preclusion order (see CPLR 3126[2]), or strike a pleading (see CPLR 3126[3]). The striking of a pleading is a drastic remedy that may only be warranted upon a clear showing that the failure to comply with discovery demands or court-ordered discovery was willful and contumacious (see Lazar, Sanders, Thaler & Assoc. Inc. v Lazar, 131 AD3d at 1133; Brandenburg v County v Rockland Sewer Dist. #1, State of N.Y., 127 AD3d at 681; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210). Although not expressly set forth as a sanction under CPLR 3126, we have held that the imposition of a monetary sanction under CPLR 3126 may be appropriate to compensate counsel or a party for the time expended and costs incurred in connection with an offending party’s failure to fully and timely comply with court-ordered disclosure (see Knoch v City of New York, 109 AD3d 459; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 801; O’Neill v Ho, 28 AD3d 626, 627). Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Accordingly, the court should have granted that branch of the plaintiff’s motion which was to strike the defendants’ answers.”