CPLR § 3126 and a long dissent

The record reflects that defendant Vinces moved to compel plaintiff
to provide a bill of particulars. This motion was withdrawn when
plaintiff served a bill of particulars. Subsequently, Vinces apparently
became dissatisfied with the bill of particulars plaintiff provided to
him. Hence, at a preliminary conference held after service of the bill
of particulars, plaintiff was ordered to provide a supplemental bill of
particulars. Plaintiff does assert that he should have insisted that he
not be required to serve a supplemental bill until after the completion
of discovery, since he was hard-pressed to further particularize his
contentions at that point. In any event, when a supplemental bill was
not furnished according to the schedule set forth in the preliminary
conference order, defendant moved again in that regard, which motion
resulted in the conditional order of preclusion under review.
[*2]

While it is true that
plaintiff did not timely comply with the court-ordered deadlines, the
delay was not lengthy, and defendant Vinces cannot claim prejudice
because of the tardy supplemental bill of particulars that plaintiff
ultimately furnished (see Marks v Vigo, 303 AD2d 306 [2003]).
There is no evidence that plaintiff's inaction was willful,
contumacious, or the result of bad faith. As a result, striking the
complaint as against Vinces would have been an overly drastic remedy
for plaintiff's delay in complying with discovery (see Cooper v Shepherd, 280 AD2d 337 [2001]). That the Court of Appeals in Wilson v Galicia Contr. & Restoration Corp.
(10 NY3d 827 [2008]) upheld Supreme Court's enforcement of an order of
preclusion does not mean that Supreme Court's determination in this
case not to enforce such an order constituted such an abuse of
discretion as to warrant reversal.

McGUIRE, J. (dissenting)

The order on appeal granting defendant Vinces's motion to enforce a
conditional order precluding plaintiff from offering certain evidence
at trial to the extent of imposing a $500 disclosure sanction against
plaintiff should be modified, the conditional order, which became
absolute, should be enforced and the complaint as against Vinces should
be dismissed. Accordingly, I dissent.

Of course, plaintiff could not avoid the consequences of his failure
to comply timely with the conditional order merely by serving the
supplemental bill of particulars after the court-imposed deadline (see Gilmore, supra; Stewart v City of New York,
266 AD2d 452 [1999]). Rather, to be relieved of the consequences of his
failure to comply timely with the conditional order, plaintiff was
required to demonstrate both a reasonable excuse for his failure to
comply with the order and a meritorious claim against Vinces (see e.g. Callaghan, supra; G.D. Van Wagenen Fin. Services, Inc. v Sichel, 43 AD3d 1104 [2007]; Gilmore, supra; VSP Assoc., P.C. v 46 Estates Corp., 243 AD2d 373 [1997]; Michaud v City of New York, 242 AD2d 369 [1997]). Even assuming without deciding that plaintiff's counsel's excuse of law office failure is reasonable (but see Okun v Tanners, 11 NY3d 762 [2008], revg 47 AD3d 475 [2008]),^[FN3]
plaintiff failed to demonstrate that he has a meritorious claim against
Vinces. Notably, plaintiff failed to submit the affirmation or
affidavit of a medical expert suggesting that Vinces is liable for
plaintiff's injuries in this medical malpractice and lack of informed
consent action (see e.g. Gilmore, supra; see also Kaufman v Bauer, 36 AD3d 481 [2007]; Ramos v Lapommeray, 135 AD2d 439 [1987]; Canter v Mulnick, 93 AD2d 751, 752 [1983], affd 60 NY2d 689 [1983]).

Because the conditional order became absolute and plaintiff
failed to make the dual showing necessary to be relieved of the
consequences of that absolute order, plaintiff should be precluded from
offering testimony at trial with respect to the issues he was obligated
to address in the supplemental bill of particulars, i.e., his claim
that Vinces was vicariously liable for the [*5]negligence
of the other defendants, the dates of the alleged malpractice and the
specific allegations of negligence against Vinces. Thus, plaintiff
cannot establish a prima facie case against Vinces and summary judgment
in Vinces's favor
dismissing the complaint as against him is warranted (see e.g. Calder v Cofta, 49 AD3d 484 [2008]; State Farm Mut. Auto Ins. Co., supra; Callaghan, supra; G.D. Van Wagenen Fin. Services, Inc., supra; Gilmore, supra; Contarino v North Shore Univ. Hosp. at Glen Cove, 13 AD3d 571
[2004]). Giving full force and effect to the conditional (now absolute)
order is consonant with the Court of Appeals' direction that
court-ordered deadlines are to be taken seriously by the parties and
enforced by the courts (see Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 [2005]; Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

The majority attempts to meet Vinces's argument that the
conditional order had become absolute with only an implicit and
unsupportable assumption, even as it ignores the authorities cited
above supporting that argument. Thus, the majority states only as
follows: "That the Court of Appeals in Wilson upheld Supreme
Court's enforcement of an order of preclusion does not mean that
Supreme Court's determination in this case not to enforce such an order
constituted such an abuse of discretion as to warrant reversal." As is
evident, the majority simply assumes the existence of the very
discretion that could support its position.

In Wilson, the Court of Appeals held that,

"As the conditional order was self-executing and appellant's
failure to produce requested items on or before the date certain'
rendered it absolute' (see Zouev v City of New York, 32 AD3d 850, 850 [2d Dept 2006]; Lopez v City of New York, 2 AD3d 693,
693 [2d Dept 2003]), the courts below correctly held that defendant was
precluded from introducing any evidence at the inquest tending to
defeat the plaintiff's cause of action' (Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]; see
Weinstein-Korn-Miller, NY Civ Prac ¶ 3126.03 [a conditional order will
preclude proof as to matters not furnished unless the delinquent party
provides the particulars within the time frame specified in the
order']). As a result, [defendant] was deemed to admit all traversable
allegations in the complaint, including the basic allegations of
liability (Curiale v Ardra Ins. Co., 88 NY2d 268, 279 [1996])" (10 NY3d at 830).

Nowhere in its opinion did the Court come close to suggesting
the remarkable proposition that either Supreme Court or the Appellate
Division enjoys some undefined and broad discretion not to follow the
rule of law, i.e., not to enforce a conditional order of preclusion
that had become absolute even when the requisite dual showing of a
reasonable excuse for the party's failure to comply with the order and
a meritorious claim has not been met. To the contrary, in the first of
the cases cited by the Court of Appeals in Wilson, a
conditional order of preclusion had become absolute and the Second
Department stated as follows: "To be relieved of the adverse impact of
the order striking its answer, the defendant was required to demonstrate a reasonable excuse for its failure to produce the requested items and the existence of a meritorious defense" (Zouev,
32 AD3d at 850 [emphasis added]). Moreover, as noted, the majority just
ignores the plethora of Appellate Division authority supporting
Vinces's argument (see e.g. Callaghan, supra; Gilmore, supra; see also State Farm Mut. Auto Ins. Co., supra). Albeit with regret, for these reasons I respectfully submit that the majority's position is indefensible.

Even if the conditional order had not become absolute (and
plaintiff was not precluded from offering testimony at trial with
respect to the issues he was obligated to address in the [*6]supplemental
bill of particulars), I would not agree that the "costs" imposed by
Supreme Court — a $500 penalty — was appropriate. That disclosure
sanction amounts to nothing more than the gentlest of slaps on the
wrist and is not remotely commensurate with the serious, chronic and
inexcusable nature of plaintiff's counsel's failures to comply with the
court's directives (see Weissman v 20 E. 9th St. Corp., 48 AD3d 242, 243 [2008]; Christian v City of New York,
269 AD2d 135, 137 [2000]). Plaintiff failed to comply with both the
preliminary conference order requiring him to serve a supplemental bill
of particulars and the February 21, 2007 conditional order of
preclusion. Moreover, Vinces had to incur the costs of having his
counsel send three letters to plaintiff and make a motion to compel
just to get an initial bill of particulars from plaintiff — which
Supreme Court determined for good and sufficient reasons was
"unsatisfactory." And when plaintiff inexcusably failed to comply with
the February 21, 2007 order, Vinces had to incur the costs of yet
another motion. Albeit it once again with regret, I respectfully submit
that the majority's affirmance of this trivial disclosure sanction is
indefensible and, to say the least, does nothing to encourage the
conduct that is of critical importance to the fair, expeditious and
efficient resolution of civil litigation: compliance with court-ordered
deadlines (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Kihl, supra). To all the attorneys and the trial courts committed to these imperatives, the majority's affirmance will be damaging (see generally Figdor v City of New York, 33 AD3d 560,
561 [2006] ["We take this opportunity to encourage the IAS courts to
employ a more proactive approach in such circumstances; upon learning
that a party has repeatedly failed to comply with discovery orders,
they have an affirmative obligation to take such additional steps as
are necessary to ensure future compliance"]).

Accordingly, I would modify the order appealed to enforce the
conditional order, preclude plaintiff from offering testimony at trial
with respect to the issues he was obligated to address
in the supplemental bill of particulars and grant summary judgment to Vinces dismissing the complaint as against him.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 30, 2009

CLERK

Footnotes

Footnote 1:The
majority writes that "[p]laintiff does assert that he should have
insisted that he not be required to serve a supplemental bill until
after the completion of discovery, since he was hard-pressed to further
particularize his contentions at that point." Why the majority recites
this assertion is unclear, particularly because the majority does not
state whether it agrees with the assertion. In any event, no sympathy
is due to plaintiff on this account for his assertion is patently
irrelevant. Supreme Court found that the original bill of particulars
was "unsatisfactory" and directed plaintiff to serve a supplemental
bill particularizing his claim that Vinces was vicariously liable for
the negligence of the other defendants, the dates of the alleged
malpractice and the specific allegations of negligence against Vinces.
If plaintiff disagreed with that directive, he should have moved to
vacate the preliminary conference order. Obviously, Supreme Court — not
plaintiff — is the arbiter of the sufficiency of the bill of
particulars, and plaintiff was required to comply with the court's
unequivocal order. Apart from the irrelevance of this assertion, the
implicit effort to blame the court for plaintiff's failure to comply is
as revealing as it is troubling.

Footnote 2:The
forty-fifth day after February 21, 2007 was April 7. Because April 7
was a Saturday, plaintiff's deadline to comply with the order was
Monday April 9 (see General Construction Law § 25-a).

Footnote 3:The
majority makes no attempt at all to defend plaintiff's excuse as
reasonable. The majority's tacit conclusion that it is not reasonable
is understandable. Plaintiff's counsel asserted only that she failed to
comply with the conditional order in a timely fashion because:
"I did not attend Court for the Motion on February 21,
2007 when [the conditional order] was entered . . . The attorney who
did attend . . . is no longer with this firm. Routinely, the attorney
who appears gives me a copy of a Stipulation [or order] to enter dates
and deadlines on my personal calendar. I did not have the date on which
the Supplemental Bill of Particulars, in this case, was due on my
calendar. I do not remember being given a copy of the [order]. I have,
however, served a Supplemental Bill of Particulars on this date [i.e.,
June 21, 2007]. This was an inadvertent law office failure."
This "excuse" explains nothing. Why counsel did not have the
date on her calendar is unexplained, as is the relevance of the fact
that the attorney who was in court had left the firm. Notably, counsel
does not deny receiving a copy of the order, but merely asserts that
she did not remember receiving a copy. Moreover, the statement that the
attorney who actually appears in court "[r]outinely" provides counsel
with a copy of the order makes the noncompliance more not less puzzling.