September 11, 2013
Shimon Silberstein, etc., et al., appellants,
Maimonides Medical Center, et al., respondents.. (Index No. 12042/08)
Jaroslawicz & Jaros, LLC, New York, N.Y. (Robert J. Tolchin of counsel), for appellants.
McAloon & Friedman, P.C., New York, N.Y. (Gina Bernardi Di Folco and Laura Shapiro of counsel), for respondents Maimonides Medical Center, Michael Tosi, and Matthew Tito.
Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler and Arshia Hourizadeh of counsel), for respondents Rivka Stein, Kindercare Pediatrics, LLP, Jeffrey Marc Dick, and Jay R. Begun.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, LEONARD B. AUSTIN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated January 4, 2011, as granted the motion of the defendants Rivka Stein, Kindercare Pediatrics, LLP, Jeffrey Marc Dick, and Jay R. Begun, and the cross motion of the defendants Maimonides Medical Center, Michael Tosi, and Matthew Tito, pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against each of them, and (2) a judgment of the same court dated March 28, 2011, which, upon the order, is in favor of the defendants and against them, dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a]).
The infant plaintiff, by his parents, and his parents suing derivatively, commenced this action to recover damages allegedly sustained as a result of the defendants' malpractice regarding the treatment of the infant plaintiff's herpes infection. In a decision and order on a prior appeal, this Court concluded that the Supreme Court providently exercised its discretion in directing the plaintiffs to disclose the identity of the mohel who performed the circumcision, which included the ritual of metzitzah b'peh, on the infant plaintiff, "as the identity of the mohel was material and necessary to the defense of the action" (Silberstein v Maimonides Med. Ctr., 77 A.D.3d 910, 910).
Subsequently, the plaintiffs continued to refuse to disclose the mohel's identity as directed by the Supreme Court, and the infant plaintiff's parents invoked their privilege against self-incrimination pursuant to the Fifth Amendment to the United States Constitution. The Supreme Court then granted the motion of the defendants Rivka Stein, Kindercare Pediatrics, LLP, Jeffrey Marc Dick, and Jay R. Begun, and the cross motion of the defendants Maimonides Medical Center, Michael Tosi, and Matthew Tito, pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against each of them. In its order granting the motions, the Supreme Court noted that the privilege against self-incrimination was to be used solely as a shield and not as a sword by the plaintiffs to thwart discovery of information which was deemed to be material and necessary to the defense of this action. Thereafter, judgment was entered in favor of the defendants and against the plaintiffs, dismissing the complaint.
"The Supreme Court has broad discretion in making determinations concerning matters of disclosure including the nature and degree of the penalty to be imposed under CPLR 3126" (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 209; see Kihl v Pfeffer, 94 N.Y.2d 118, 122-123; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 A.D.3d 798, 800). "The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious" (Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 A.D.3d 1066, 1066; see Commisso v Orshan, 85 A.D.3d 845, 845; Byam v City of New York, 68 A.D.3d 798, 800). Further, the court can infer that a party is acting willfully and contumaciously through his or her repeated failure to respond to demands or to comply with discovery orders (see Flynn v City of New York, 101 A.D.3d 803, 805; Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 A.D.3d at 1066; Commisso v Orshan, 85 A.D.3d at 845).
Here, the Supreme Court providently exercised its discretion in dismissing the complaint, as there was a clear showing that the plaintiffs' failure to comply with the defendants' demand for the mohel's identity and subsequent court orders directing the disclosure of this information, without a reasonable excuse, was willful and contumacious (see Cherubin Antiques, Inc. v Matiash, 106 A.D.3d 861, 862; Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 A.D.3d at 1066; Vanalst v City of New York, 302 A.D.2d 515, 516; see also Flynn v City of New York, 101 A.D.3d at 805). Contrary to the plaintiffs' contention, the Supreme Court providently exercised its discretion in dismissing the entire complaint rather than only dismissing the parents' derivative causes of action (see Lichenstein v Fantastic Mdse. Corp., 46 A.D.3d 762, 764; Yona v Beth Israel Med. Ctr., 285 A.D.2d 460, 461; Stahl v Rhee, 220 A.D.2d 39, 44).
RIVERA, J.P., SKELOS, CHAMBERS and AUSTIN, JJ., concur.