        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

628
CA 12-01411
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


EDWARD A. LEGARRETA, M.D., PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MELISSA A.L. NEAL, M.D., AND TWENTY 20 EYE CARE
AND AESTHETIC OCULOPLASTIC MEDICINE, PLLC,
DEFENDANTS-APPELLANTS.
------------------------------------------------
MELISSA NEAL, M.D., PLAINTIFF-APPELLANT,

                    V

EDWARD A. LEGARRETA, M.D., LEGARRETA EYE CENTER,
AND SALLY LEGARRETA, DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


MYERS, QUINN & SCHWARTZ, LLP, WILLIAMSVILLE (JAMES I. MYERS OF
COUNSEL), FOR DEFENDANTS-APPELLANTS AND PLAINTIFF-APPELLANT.

JAECKLE FLEISCHMANN & MUGEL, LLP, BUFFALO (BRADLEY A. HOPPE OF
COUNSEL), FOR PLAINTIFF-RESPONDENT AND DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered January 25, 2012. The order, among other
things, directed that the answer of defendants-appellants shall be
stricken if a patient list was not produced by February 1, 2012.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: These four appeals arise out of two consolidated
actions. Edward A. Legarreta, M.D. commenced the first action against
Melissa A.L. Neal, M.D. and Twenty 20 Eye Care and Aesthetic
Oculoplastic Medicine, PLLC (Twenty 20) (collectively, defendants)
seeking damages for, inter alia, Dr. Neal’s alleged breach of her
employment contract with Dr. Legarreta and misappropriation of trade
secrets (hereafter, contract action). Dr. Neal thereafter commenced
the second action against Dr. Legarreta, Sally Legarreta (Sally), who
is Dr. Legarreta’s wife, and the Legarreta Eye Center (collectively,
Legarretas) seeking damages for, among other things, injuries she
allegedly sustained as a result of an assault by Sally (hereafter,
personal injury action). In appeal No. 1, defendants, as limited by
their brief, appeal from an order insofar as it granted that part of
Legarretas’ motion seeking to compel defendants to produce a complete
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                                                         CA 12-01411

list of all of Dr. Neal’s patients in the contract action, and
authorizations for the release of medical records relating to her
neck, shoulder, arm, wrist, and hand in the personal injury action.
In appeal No. 2, defendants, as limited by their brief, appeal from an
order insofar as it granted that part of Legarretas’ motion seeking an
order striking defendants’ answer in the contract action in the event
that defendants failed to produce a complete patient list by February
1, 2012. In appeal No. 3, defendants appeal from an order and
judgment that, inter alia, granted that part of Legarretas’ motion for
a default judgment against defendants in the contract action pursuant
to the self-executing order in appeal No. 2. In appeal No. 4, Dr.
Neal appeals from an order and judgment granting that part of the
Legarretas’ motion to strike her complaint in the personal injury
action.

     Initially, we note that appeal No. 1 must be dismissed inasmuch
as the underlying order was superseded by the order in appeal No. 2
(see Wall v Villa Roma Resort Lodges, Inc., 299 AD2d 351, 351; see
generally Matter of Eric D. [appeal No. 1], 162 AD2d 1051, 1051).
With respect to the remaining appeals, CPLR 3126 provides that “[i]f
any 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 make such orders with regard to the
failure or refusal as are just,” including “an order striking out
pleadings or parts thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or any part thereof, or
rendering a judgment by default against the disobedient party” (CPLR
3126 [3]). “Generally, the nature and degree of the penalty to be
imposed pursuant to CPLR 3126 against a party who refuses to comply
with court-ordered discovery is a matter within the discretion of the
court” (Mahopac Ophthalmology, P.C. v Tarasevich, 21 AD3d 351, 352;
see Kihl v Pfeffer, 94 NY2d 118, 123; Sugar Foods De Mexico v
Scientific Scents, LLC, 88 AD3d 1194, 1196; Hill v Oberoi, 13 AD3d
1095, 1096). The language in CPLR 3126 that “permits courts to
fashion orders as are just . . . broadly empowers a trial court to
craft a conditional order—an order that grants the motion and imposes
the sanction unless within a specified time the resisting party
submits to the disclosure” (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 79
[internal quotation marks omitted]; see Patrick M. Connors, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:10).

     We conclude with respect to appeal No. 2 that Supreme Court
properly exercised its discretion in granting a conditional order
striking the answer in the contract action unless defendants produced
Dr. Neal’s patient list by February 1, 2012 (see Pugliese v Mondello,
67 AD3d 880, 881, lv dismissed 14 NY3d 873). Dr. Legarreta first
demanded the patient list in July 2011 and, despite two motions to
compel, Dr. Neal failed to turn over her patient list. In a bench
decision dated December 1, 2011, the court directed Dr. Neal to
produce “a complete list of all of her patients, including names,
addresses and dates of treatment, . . . by December 22, 2011,” and
specifically instructed the Legarretas that they could move to strike
defendants’ answer in the contract action in the event Dr. Neal failed
to comply. That decision was reduced to an order entered December 19,
                                 -3-                           628
                                                         CA 12-01411

2011, i.e., the order in appeal No. 1 (hereafter, December 2011
order).

     Defendants, however, failed to produce a patient list by the
court-imposed deadline, and the Legarretas moved to strike defendants’
answer based upon defendants’ willful violation of the December 2011
order. In a bench decision dated January 12, 2012, the court
determined that Dr. Neal intentionally violated the December 2011
order inasmuch as she provided no basis for her failure to produce the
patient list. By order entered January 25, 2012, i.e., the order in
appeal No. 2, the court directed that defendants’ answer in the
contract action would “be stricken immediately” if they did not
produce the patient list “on or before February 1, 2012” (hereafter,
January 2012 conditional order).

     On February 1, 2012, the deadline set forth in the January 2012
conditional order, defendants sought a stay from a justice of this
Court pending their appeal from the December 2011 order and the
January 2012 “decision.” Although a justice of this Court signed a
temporary stay of enforcement, it thereafter became apparent that
defendants had not filed a notice of appeal from the January 2012
conditional order and thus that this Court had no jurisdiction to
grant relief with respect to that order (see CPLR 5519 [c]).
Defendant’s appeal from the December 2011 order had been rendered moot
by the subsequent order, as noted above. Inasmuch as the temporary
stay had no effect on the January 2012 conditional order, which was
self-executing, defendants’ answer was stricken when they failed to
produce the patient list by February 1, 2012 (see Gibbs, 16 NY3d at
82-83; Foster v Dealmaker, SLS, LLC, 63 AD3d 1640, 1641, lv denied 15
NY3d 702; Zouev v City of New York, 32 AD3d 850, 850-851). Even
assuming, arguendo, that the temporary stay extended the deadline for
compliance with the conditional order, we conclude that the January
2012 conditional order became absolute when defendants failed to turn
over the patient list immediately upon the expiration of the stay.

     It is well established that, in order to “obtain relief from the
dictates of a conditional order . . . , the defaulting party must
demonstrate (1) a reasonable excuse for the failure to produce the
requested items and (2) the existence of a meritorious claim or
defense” (Gibbs, 16 NY3d at 80). Here, defendants failed to establish
a reasonable excuse for their failure to comply with the conditional
order (see Lee v Arellano, 18 AD3d 620, 621; cf. Zouev, 32 AD3d at
850). Notably, defendants had almost seven months within which to
comply with the Legarretas’ demand for Dr. Neal’s patient list. As
noted above, the court first ordered Dr. Neal to turn over the patient
list in December 2011. Instead of seeking an extension of time to
comply with that order or a stay of enforcement thereof, defendants
simply ignored the court-ordered deadline. With respect to the
January 2012 conditional order, defendants did not produce the patient
list as ordered by February 1, 2012 and, instead, waited until that
date to make a defective stay application.

     Although defendants contend that Dr. Neal’s failure to turn over
the patient list by February 1, 2012 was not willful or contumacious,
                                 -4-                          628
                                                        CA 12-01411

it is well settled that, “where a conditional order ha[s] previously
been entered based on the court’s findings that a party ha[s] caused
delay and failed to comply with the court’s discovery orders, the
court [i]s not required to find that [the defaulting party]’s conduct
in failing to comply with the conditional order was ‘willful’ ”
(Keller v Merchant Capital Portfolios, LLC, 103 AD3d 532, 533; see
Gibbs, 16 NY3d at 82; Siegel, NY Prac § 367 at 608 [4th ed 2005]). In
any event, the court here concluded that “the uncontradicted evidence
shows that this time Dr. Neal’s refusal to comply with the Court’s
order was indeed willful and contumacious.”

     Inasmuch as defendants failed to demonstrate a reasonable excuse
for their violation of the conditional order, we conclude with respect
to the order and judgment in appeal No. 3 that the court properly
granted Legarretas’ motion for entry of a default judgment against
defendants on all of the remaining causes of action in the contract
action (see Keller, 103 AD3d at 533; Sugar Foods De Mexico, 88 AD3d at
1196; Callaghan v Curtis, 48 AD3d 501, 502; cf. Gibbs, 16 NY3d at 83).

     We conclude with respect to appeal No. 4 that the court did not
abuse its discretion in striking Dr. Neal’s complaint in the personal
injury action based upon her failure to disclose prior treatment for
injuries to her neck and left arm. It is well settled that “[w]hile
the nature and degree of the penalty to be imposed on a motion
pursuant to CPLR 3126 is a matter of the Supreme Court’s discretion,
striking a pleading is appropriate [only] where there is a clear
showing that the failure to comply with discovery demands is willful,
contumacious, or in bad faith” (Hill, 13 AD3d at 1096 [internal
quotation marks omitted]; see Luppino v Mosey, 103 AD3d 1117, 1119;
Hann v Black, 96 AD3d 1503, 1504). “The willful or contumacious
character of a party’s conduct can be inferred from the party’s
repeated failure to respond to demands or to comply with discovery
orders” (Flynn v City of New York, 101 AD3d 803, 805; see Doherty v
Schuyler Hills, Inc., 55 AD3d 1174, 1176). “Once a moving party
establishes that the failure to comply with a disclosure order was
willful, contumacious or in bad faith, the burden shifts to the
nonmoving party to offer a reasonable excuse” (Hann, 96 AD3d at 1504-
1505 [internal quotation marks omitted]).

     Here, we conclude that the Legarretas established that Dr. Neal’s
failure to disclose her prior treatment was willful or contumacious
based upon her repeated failure to produce requested medical
authorizations and defendants’ overall pattern of noncompliance in
both the contract and personal injury actions (see Doherty, 55 AD3d at
1176; see generally Hann, 96 AD3d at 1505; Hill, 13 AD3d at 1096).
The Legarretas first requested authorizations for “all medical and
hospital records relating to the physical condition of [Dr. Neal] as
set forth in the plaintiff’s complaint” in July 2011. After the
Legarretas made a motion to compel, Dr. Neal produced authorizations
that were limited to treatment she received after June 12, 2009, the
date of the alleged assault. The Legarretas thereafter demanded
production of “all of Dr. Neal’s medical records, without any kind of
temporal limitation, relating in any way to her neck and the arm,
wrist and hand that are the subject of this action” (emphasis added).
                                 -5-                           628
                                                         CA 12-01411

The Legarretas noted in correspondence with counsel for defendants
that “Dr. Neal obviously treated with other physicians prior to June
12, 2009, including physicians in the locations she lived in prior to
coming to Buffalo in 2006, including . . . Pennsylvania . . . We need
authorizations from all such physicians, without any kind of temporal
limitation, relating in any way to her neck and the arm, wrist and
hand that are the subject of this action.”

     When defendants failed to provide the requested authorizations,
the Legarretas filed another motion to compel in November 2011 seeking
to strike defendants’ complaint in the personal injury action unless
Dr. Neal produced “complete medical authorizations for each and every
physician she has treated with regarding injuries to her neck,
shoulder, arm, wrist and hand that [were] the subject of th[at]
action.” The court granted the Legarretas’ motion and ordered Dr.
Neal to produce authorizations for the disclosure of all of her “adult
medical records, i.e.[,] after her 21st birthday,” relating to any
treatment of her neck, shoulder, arm, wrist, and hand, both before and
after the incident. In response, Dr. Neal provided revised
authorizations that were again limited to medical providers she
treated with after the date of the incident. In a January 2012
affirmation, Dr. Neal averred that she had produced authorizations
concerning “all medical records since [she] was 21 years of age for
treatment related to [her] ‘neck, shoulder, arm, wrist and hand.’ ”
Further, in a January 2012 deposition, Dr. Neal unequivocally
testified that she experienced no symptoms and sought no medical
treatment with respect to her left shoulder, arm, wrist, or hand prior
to the June 12, 2009 incident, including during the four years she
attended medical school in Pennsylvania.

     Notwithstanding Dr. Neal’s assertion, the Legarretas requested
medical authorizations for doctors she treated with in Pennsylvania.
In May 2012, Dr. Neal’s new attorney finally provided the requested
authorizations. The medical records produced thereto revealed that,
despite her sworn assertions to the contrary, Dr. Neal had indeed
sought treatment for her neck and left arm prior to the incident at
issue. In November 1996, Dr. Neal went to two different emergency
rooms on three consecutive days after she was involved in a motor
vehicle accident. Although Dr. Neal asserted that she simply “did not
recall” those three hospital visits, we conclude that the court did
not abuse its discretion in rejecting her excuse, particularly in
light of a similar situation that occurred in 2011 in the contract
action.

     We thus conclude that the court did not abuse its discretion in
determining that Dr. Neal’s failure to reveal her prior injuries and
her attempts to frustrate the Legarretas’ access to relevant medical
records was willful and contumacious, and that her alleged inability
to recall those prior injuries did not constitute a reasonable excuse
(see Hill, 13 AD3d at 1096; see also Arpino v F.J.F. & Sons Elec. Co.,
Inc., 102 AD3d 201, 208-209; Roug Kang Wang v Chien-Tsang Lin, 94 AD3d
850, 852; Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat
Inc., 94 AD3d 491, 492). The court therefore properly exercised its
discretion in striking Dr. Neal’s complaint in the personal injury
                                 -6-                  628
                                                CA 12-01411

action (cf. Hill, 13 AD3d at 1096).




Entered:   July 5, 2013                Frances E. Cafarell
                                       Clerk of the Court
