Lucas v. Stam, 147 A.D.3d 921, 48 N.Y.S.3d 150 [2d Dept. 2017]
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.
It was alleged that Schiff and the Hospital negligently failed to obtain proper medical clearance for the surgery, used the wrong medical clearance form, and failed to inform Stam that the surgery was going to be performed under general anesthesia.
In a letter dated August 8, 2012, an attorney from Martin Clearwater & Bell, LLP (hereinafter Martin Clearwater), the law firm representing the defendants, disclosed the names of two surgical bookers and represented that both individuals had left their employment with nonparty 61 Street Service Corp. in May 2008. Thereafter, the plaintiff’s counsel learned that one of those surgical bookers, Marcia Barnaby, was, in fact, working at the Hospital. During a subsequent court conference, the attorney from Martin Clearwater explained that he made “an honest mistake” in his representation of Barnaby’s employment status.
After serving a subpoena on 61 Street Service Corp., the plaintiff’s counsel learned the name of another surgical booker, Anthony Pastor, who was working at the Hospital in September 2007. Based upon, among other things, the defendants’ failure to disclose Pastor’s name, the Supreme Court held a sanctions hearing in June 2013. At the hearing, an attorney from Martin Clearwater claimed that the failure was an “oversight.”
However, subsequently, the plaintiff’s counsel learned that the same Martin Clearwater attorney had, in fact, interviewed Pastor in the summer of 2012, and that Pastor told the attorney that his handwriting appeared on the subject history and physical form.
In an amended order dated April 4, 2014, the Supreme Court found that “the willful and contumacious conduct of defendants can be inferred from defendants’ continuous failure to comply with discovery demands and [court] [o]rders.” The court noted that the defendants repeatedly served affidavits that failed to comply with its directives, and that “the piecemeal manner in which defendants[ ] provided the names of the surgical bookers . . . [was] inexcusable and could only have been designed to conceal evidence and delay these proceedings.”
Despite finding that the defendants’ tactics “were meant to delay and complicate these proceedings,” the court granted the plaintiff’s motion only to the extent of imposing a monetary sanction upon the defendants and Martin Clearwater in the sum of $10,000 payable to the plaintiff’s counsel for costs and legal fees in bringing the motion, and a monetary sanction upon Martin Clearwater in the sum of $5,000 payable to the Lawyers’ Fund for Client Protection.
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. 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.”
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.
