Kiernan v Booth Mem. Med. Ctr., 2019 NY Slip Op 06596 [2d Dept. 2019]
“A party is not entitled to unlimited, uncontrolled, unfettered disclosure” (Geffner v Mercy Med. Ctr., 83 AD3d 998, 998; see McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 547, 548). ” The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed'” (Montalvo v CVS Pharm., Inc., 102 AD3d 842, 843, quoting Mattocks v White Motor Corp., 258 AD2d 628, 629 [citation omitted]). Here, the plaintiffs’ request for additional information and color photographs of certain Forest View personnel who worked on the floor where the decedent resided on February 5 and 6, 2008, was palpably improper because it was overbroad and unduly burdensome (see JPMorgan Chase Bank, N.A. v Levenson, 149 AD3d 1053, 1055; Stepping Stones Assoc., L.P. v Scialdone, 148 AD3d 855, 856; Pesce v Fernandez, 144 AD3d 653, 655; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was to compel the production of such material.
Kiernan v Booth Mem. Med. Ctr., 2019 NY Slip Op 06597 [2d Dept. 2019]
“The determination whether to strike a pleading or to preclude evidence for failure to comply with court-ordered disclosure lies within the sound discretion of the court” (Palmieri v Piano Exch., Inc., 124 AD3d 611, 612; see Neenan v Quinton, 110 AD3d 967, 968). However, the drastic remedy of striking a pleading or even precluding evidence pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious (see MacKenzie v City of New York, 125 AD3d 821, 822; Palmieri v Piano Exch., Inc., 124 AD3d at 612; Gutman v Cabrera, 121 AD3d 1042, 1043). Here, Forest View timely complied with the court-ordered discovery and adequately explained that it had previously disclosed the identity of the health aides and their employment statuses on September 14, 2017. Thus, there was no clear showing that Forest View engaged in any willful and contumacious noncompliance with regard to disclosure in this matter (see e.g. MacKenzie v City of New York, 125 AD3d at 822; Palmieri v Piano Exch., Inc., 124 AD3d at 612).
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