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.”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.