The opinion of the court was delivered by: Graffeo, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In this medical malpractice action, plaintiff failed to serve a supplemental bill of particulars before the deadline set by a conditional order of preclusion. Consistent with our precedent, we conclude that the trial court erred as a matter of law in excusing the default without requiring plaintiff to establish both a reasonable excuse for his noncompliance and a meritorious cause of action.
In June 2005, plaintiff Marvin Gibbs commenced this medical malpractice action against a number of defendants, including Dr. Fausto Vinces. The claim arose out of treatment plaintiff received for his right hip while a patient at defendant St. Barnabas Hospital. In August 2005, Dr. Vinces served plaintiff with an answer, various disclosure demands and a demand for a bill of particulars within 30 days, as authorized by CPLR 3042.
When there was no response after 30 days, Dr. Vinces' counsel sent plaintiff a letter on January 24, 2006 requesting that a bill of particulars be provided within 10 days "or we will have no alternative but to move to compel production of same." The following day, Dr. Vinces' counsel notified plaintiff that he had not yet satisfied a number of the other discovery demands as well. Plaintiff failed to reply to either letter. Dr. Vinces' attorney again issued a letter on March 21, 2006 seeking the bill of particulars and warning that court intervention would be necessary if plaintiff failed to comply. Again, no response was forthcoming from plaintiff. On May 24, 2006, Dr. Vinces' attorney forwarded plaintiff yet another letter demanding a bill of particulars and the production of other disclosure items within 10 days. Plaintiff did not request an extension of time to respond or in any way reply to these multiple requests.
As a result, in June 2006, Dr. Vinces moved to compel plaintiff to comply with the demand for a bill of particulars and the discovery demands, and requested that the court sanction plaintiff under CPLR 3042 and 3126 by dismissing the complaint or precluding plaintiff from offering evidence at trial regarding Dr. Vinces' alleged negligence. Plaintiff finally served a bill of particulars in August 2006, one year after the doctor's initial demand. Dr. Vinces agreed to withdraw his motion, even though a number of other discovery items remained outstanding.
At a preliminary conference conducted in November 2006, Supreme Court determined that plaintiff's bill of particulars was "unsatisfactory" and directed plaintiff to furnish a supplemental bill of particulars within 30 days clarifying, among other things, the specific allegations of negligence against Dr. Vinces. Plaintiff did not supply the supplemental bill and, in January 2007, Dr. Vinces moved pursuant to CPLR 3126 to strike the complaint or foreclose plaintiff from submitting evidence of negligence at trial based on plaintiff's willful noncompliance.
Supreme Court conditionally granted the motion and issued a conditional preclusion order on February 21, 2007, stating that plaintiff would be barred from offering evidence as to Dr. Vinces' negligence if plaintiff did not serve the supplemental bill of particulars within 45 days. Although Dr. Vinces sent a reminder letter to plaintiff on March 7, 2007, plaintiff did not submit a supplemental bill before the court- imposed deadline, nor did plaintiff request an extension of time to respond or otherwise seek relief prior to the expiration of plaintiff's time to comply under the terms of the order.
Consequently, in May 2007, Dr. Vinces moved to enforce the conditional order of preclusion and for summary judgment dismissing the complaint as against him on the basis that plaintiff could no longer supply any evidence of negligence under the order, which became absolute when plaintiff failed to comply with its terms. Plaintiff served a supplemental bill of particulars in June 2007, approximately 75 days after the deadline specified in the preclusion order.
In opposition to the motion to enforce the conditional preclusion order, plaintiff asserted that Dr. Vinces had received the supplemental bill of particulars and therefore could not demonstrate prejudice. Plaintiff further acknowledged that "a defaulting party can be relieved of preclusion on the showing of a meritorious claim and a reasonable excuse for the delay" and claimed that he had met those requirements. In particular, plaintiff's counsel submitted an affirmation explaining that the untimely supplemental bill of particulars was the result of "inadvertent law office failure" because a different attorney from the law firm had attended the prior court proceeding that resulted in the February 21, 2007 conditional preclusion order and the expiration date had not been diaried on her calendar.*fn1
Rather than providing an affidavit of merit to satisfy the second prong of the requisite showing -- the meritorious claim --plaintiff claimed that Dr. Vinces' "motion does not suggest that plaintiff does not have a meritorious claim."
Supreme Court granted Dr. Vinces' motion but only to the extent of directing plaintiff to pay $500 as costs for his delay in complying with discovery.*fn2 The Appellate Division, with one Justice dissenting, affirmed (61 AD3d 599 [1st Dept 2009]). The majority concluded that the trial court did not abuse its discretion in declining to enforce the conditional preclusion order. The dissenter would have enforced the order and granted Dr. Vinces summary judgment, reasoning that the trial court erred in relieving plaintiff of his default without requiring him to demonstrate a reasonable excuse and a meritorious claim. The Appellate Division granted Dr. Vinces leave to appeal and certified the following question to this Court: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?" We answer this question in the negative.
Under CPLR 3042 (d), a court may invoke the relief set forth in CPLR 3126 when a "party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule." CPLR 3126, in turn, governs discovery penalties and applies where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." The statute contains a list of nonexclusive sanctions and further permits courts to fashion orders "as are just." CPLR 3126 therefore 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" (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10 ["The conditional order is in fact the most popular disposition under CPLR 3126"]; see also CPLR 3042 [d]).
The situation that developed in this case is, unfortunately, a
scenario that we have seen before. In Fiore v Galang (64 NY2d 999
, affg 105 AD2d 970 [3d Dept 1984]), a medical malpractice
action, the trial court granted a 30-day conditional order of
preclusion directing plaintiffs to serve a bill of particulars on the
defendant hospital. Following plaintiffs' lack of compliance with the
order, the hospital moved for summary judgment dismissing the
complaint. The trial court denied the motion on the condition that
plaintiffs serve a bill
of particulars and pay $415 to the hospital's attorneys.*fn3
On appeal, the Appellate Division reversed and dismissed the
complaint, concluding that the trial court erred in excusing the
default without requiring plaintiff to offer both a reasonable excuse
and an affidavit of merit. We affirmed, explaining that "absent an
affidavit of merits it was error, as a matter of law, not to grant
defendant Hospital's motion for summary judgment" (id. at 1000
Hence, we have made clear that to obtain relief from the dictates of a conditional order that will preclude a party from submitting evidence in support of a claim or defense, 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 (see id. at 1000-1001; see also Smith v Lefrak Org., 96 AD2d 859 [2d Dept 1983], affd for reasons stated 60 NY2d 828 ; Amodeo v Radler, 89 AD2d 594 [2d Dept 1982], affd 59 NY2d 1001 ). In cases involving a medical ...