Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 16, 2008, which granted the motion of defendant Vinces motion to enforce a conditional order of preclusion to the extent of directing plaintiff to pay $500 as costs for his delay in complying with discovery, affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Tom, Friedman, Sweeny, McGuire, JJ.
The law strongly prefers that matters be decided on their merits (Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 ). Accordingly, the drastic sanction of striking a pleading is inappropriate without a clear showing that the failure to comply with disclosure obligations was willful, contumacious, or the result of bad faith (see Cespedes v Mike & Jac Trucking Corp., 305 AD2d 222 ).
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 This motion was withdrawn when plaintiff served a bill of particulars.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.
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 ). 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 ). That the Court of Appeals in Wilson v Galicia Contr. & Restoration Corp. (10 NY3d 827 ) 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.
All concur except McGuire, J. who dissents in a memorandum as follows:
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.
On June 2, 2005, plaintiff commenced this medical malpractice and lack of informed consent action against, among others, Vinces. On August 9, 2005, Vinces served plaintiff with his answer, disclosure demands and a demand for a bill of particulars. Plaintiff served bills of particulars as to two other defendants on October 14, 2005, but did not serve one as to Vinces.
By a letter dated January 24, 2006, Vinces's counsel reminded plaintiff that Vinces had demanded a bill of particulars in August 2005, noted that no bill of particulars as to Vinces had been served and stated that if no bill was served within 10 days Vinces would make a motion to compel service of the bill. After no bill of particulars was served, Vinces's counsel sent a similar letter to plaintiff on March 21, 2006, again stating that a motion to compel would be made if no bill was served. Another letter to the same effect was sent on May 24, 2006 because plaintiff had still failed to serve his bill of particulars as to Vinces. In June 2006, Vinces moved to compel plaintiff to serve Vinces with a bill of particulars and comply with disclosure demands. Plaintiff finally served a bill of particulars on Vinces on August 21, 2006, and the parties stipulated that Vinces would withdraw his motion.
In the November 30, 2006 preliminary conference order, Supreme Court found the bill of particulars served on Vinces to be "unsatisfactory" and, without specifying a date by which compliance was necessary, 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*fn1. As of January 2007, plaintiff had not served the supplemental bill of particulars, and Vinces moved for disclosure sanctions under CPLR 3126, requesting that the complaint be dismissed. A February 21, 2007 order mooted the motion. In that order, Supreme Court directed plaintiff, within 45 days of the order, to provide Vinces with, among other things, the supplemental bill of particulars required by the preliminary conference order. The order concluded by warning that "[plaintiff] will be precluded from offering any ...