Defendant previously moved for an order compelling a further response to the
defendant's discovery demand pursuant to Civil Practice Law and Rules (CPLR)
§ 3101 (d) (1) regarding medical expert(s), if any, which claimant intended
to offer at trial and a statement in reasonable detail of the subject matter of
the testimony to be offered by such expert(s). That motion was granted by
decision and order of this Court dated December 11, 2001 in which claimant was
directed to serve a response to the demand upon the Attorney General's office by
regular mail within 45 days of service upon him of a copy of this decision and
order with notice of its filing. A copy of the response was also to be filed
with the Clerk of the Court. Defendant's prior motion was denied in all other
respects. The defendant now moves to dismiss the claim pursuant to CPLR §
3126 (3) on the grounds that claimant willfully failed to comply with the
Court's December 11, 2001 order. Claimant has not opposed the instant motion.
This claim is alleged to have accrued on June 5, 1999 during claimant's
incarceration at Franklin Correctional Facility and seeks damages arising in
medical negligence /malpractice due to the alleged failure of DOCS' medical
personnel to properly diagnose and/or treat claimant for what claimant describes
as a ruptured ulcer and anemia. The claim was filed on May 19, 2000.
Issue was joined by the service of the defendant's answer on June 20, 2000.
The answer was accompanied by a written demand for disclosure of information
concerning claimant's medical expert(s) pursuant to CPLR § 3101 (d) (1).
Claimant, proceeding in this claim on a pro se basis, neither responded to the
expert demand nor moved to vacate the demand. Defendant moved to compel
claimant to respond and such motion was granted.
Defense counsel alleges in his affirmation in support of the instant motion
that claimant failed to comply with the Court's December 11, 2001 order and
seeks dismissal on the grounds that such failure on claimant's part should be
viewed as a willful refusal to comply.
It appears from the affidavit of service of Elaine Hirt sworn to on December
27, 2001 that claimant was served on that date with a copy of the Court's
decision and order. Defense counsel asserts that claimant did not supply the
required documents to the Attorney General as directed in the order and his
failure to do so was not excused. Moreover, claimant by failing to oppose this
motion has offered no explanation for his non-compliance with the Court's
"The drastic remedy of dismissing a complaint pursuant to CPLR 3126 (3) for a
plaintiff's failure to comply with court-ordered discovery should be granted
only where the conduct is shown to be willful, contumacious, or in bad faith"
(Wilson v West Hempstead Generals Football Club, 286 AD2d 438). It is
now established, however, that where, as in this case, "a plaintiff disobeys a
court order and by his or her conduct frustrates the disclosure scheme provided
by the CPLR, dismissal of the complaint is within the broad discretion of the .
. . Court (see, Zletz v Wetanson, 67 NY2d 711; see also,
Kihl v Pfeffer, 94 NY2d 118; Brady v County of Nassau, 234
AD2d 408)" (Wilson, supra at 438).
Since claimant neither provided the documentation as directed in the Court's
order and at two separate telephone conferences nor offered a reasonable excuse
for having failed to do so the Court infers willful and contumacious conduct on
his part and accordingly grants the defendant's motion (see, Reed v
Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, 283 AD2d 630). The
claim is dismissed.