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.
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.
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.
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 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 A.D.2d 351, 351; see generally Matter of Eric D. [appeal No. 1], 162 A.D.2d 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 ). "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 A.D.3d 351, 352; see Kihl v Pfeffer, 94 N.Y.2d 118, 123; Sugar Foods De Mexico v Scientific Scents, LLC, 88 A.D.3d 1194, 1196; Hill v Oberoi, 13 A.D.3d 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 N.Y.3d 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 A.D.3d 880, 881, lv dismissed 14 N.Y.3d 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, 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 N.Y.3d at 82-83 ; Foster v Dealmaker, SLS, LLC, 63 A.D.3d 1640, 1641, lv denied 15 N.Y.3d 702; Zouev v City of New York, 32 A.D.3d 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 N.Y.3d at 80). Here, defendants failed to establish a reasonable excuse for their failure to comply with the conditional order (see Lee v Arellano, 18 A.D.3d 620, 621; cf. Zouev, 32 A.D.3d 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, 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 A.D.3d 532, 533; see Gibbs, 16 N.Y.3d 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 A.D.3d at 533; Sugar Foods De Mexico, 88 A.D.3d at 1196; Callaghan v Curtis, 48 A.D.3d 501, 502; cf. Gibbs, 16 N.Y.3d 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 A.D.3d at 1096 [internal quotation marks omitted]; see Luppino v Mosey, 103 A.D.3d 1117, 1119; Hann v Black, 96 A.D.3d 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 A.D.3d 803, 805; see Doherty v Schuyler Hills, Inc., 55 A.D.3d 1174, 1176). "Once a moving party establishes ...