Scaffidi & Associates, New York, NY (Kevin B. Lynch and
Robert M. Marino of counsel), for appellant.
Bartlett, McDonough, & Monaghan, LLP, White Plains, NY
(David C. Zegarelli of counsel), for respondents.
PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice, the plaintiff appeals, as limited by his brief,
from so much of an order of the Supreme Court, Kings County
(Dabiri, J.), dated October 2, 2014, as denied those branches
of his motion which were pursuant to CPLR 3126 to strike the
answer of the defendants Jeffrey Goldstein and Seaport
Orthopaedic Associates, P.C., pursuant to CPLR 3103(c) to
suppress the transcript of his deposition conducted on
February 4, 2014, and, in effect, to preclude those
defendants from offering as evidence at trial the printouts
of Facebook pages which were marked as defendant's
exhibit A at the plaintiff's deposition conducted on
February 4, 2014, unless those defendants produced the person
who obtained those printouts for a deposition.
that the order is modified, on the facts and in the exercise
of discretion, by deleting the provision thereof denying that
branch of the plaintiff's motion which was, in effect, to
preclude the defendants Jeffrey Goldstein and Seaport
Orthopaedic Associates, P.C., from offering as evidence at
trial the printouts of Facebook pages which were marked as
defendant's exhibit A at the plaintiff's deposition
conducted on February 4, 2014, unless those defendants
produced the person who obtained those printouts for a
deposition, and substituting therefor a provision granting
that branch of the motion; as so modified, the order is
affirmed insofar as appealed from, without costs or
appeal arises from a discovery dispute in a medical
malpractice action that was commenced in 2004. After the
plaintiff had been deposed three times, a note of issue and
certificate of readiness were filed on July 25, 2013.
Thereafter, the defendant Jeffrey Goldstein moved to vacate
the note of issue and certificate of readiness or,
alternatively, for permission to conduct an additional
deposition of the plaintiff, on the ground that Goldstein was
in receipt of "newly discovered evidence." By order
dated November 15, 2013, entered upon the plaintiff's
consent, the Supreme Court adjourned the motion and directed
that the plaintiff appear for a further deposition.
February 4, 2014, the plaintiff was deposed pursuant to the
consent order by Goldstein and the defendant Seaport
Orthopedic Associates, P.C. (hereinafter together the
Goldstein defendants). At that deposition, he was confronted
with the alleged newly discovered evidence, which consisted
of printouts of 13 pages that allegedly were from his
Facebook account (hereinafter the printouts). The printouts
contained, inter alia, statements from 2010 wherein the
plaintiff allegedly talked about going out to a bar, having a
great workout, and crossing the Williamsburg Bridge three
times. The plaintiff acknowledged that he used a Facebook
account in 2010, but denied that the printouts were from his
Facebook account and denied that he made the statements.
February 12, 2014, the plaintiff made a discovery request for
information about the individual who obtained the printouts,
and sought to depose that person as a witness. Thereafter, he
moved, inter alia, pursuant to CPLR 3126 to strike the
Goldstein defendants' answer and to suppress the
transcript of his deposition conducted on February 4, 2014.
Among other things, the plaintiff argued that the Goldstein
defendants willfully failed to disclose the printouts and
failed to comply with discovery deadlines, and that they
should be precluded from offering at trial all evidence that
was improperly withheld.
order dated October 2, 2014, the Supreme Court denied the
plaintiff's motion. The plaintiff appeals.
general matter, the parties to a civil dispute are free to
chart their own litigation course, and they may fashion the
basis upon which a particular controversy will be resolved.
In doing so, they may stipulate away statutory and even
constitutional rights (see Mitchell v New York
Hosp., 61 N.Y.2d 208, 214; Cullen v Naples, 31
N.Y.2d 818; Astudillo v MV Transp., Inc., 136 A.D.3d
721, 721; Quilty v Cormier, 115 A.D.3d 1229, 1230;
Durst v Grant, 92 A.D.3d 1195, 1196). Here, since
the plaintiff consented to a fourth deposition, he may not
now complain about procedural defects in the Goldstein
defendants' request for the deposition (see generally
Astudillo v MV Transp., Inc., 136 A.D.3d at 721;
Herman v Siegmund, 69 A.D.2d 871, 872; cf.
Matter of Dashawn R., 114 A.D.3d 686, 686; Wells
Fargo Bank Minn., N.A. v Dorestant, 36 A.D.3d 692, 693).
Accordingly, the Supreme Court properly denied that branch of
the plaintiff's motion which was pursuant to CPLR 3103(c)
to suppress the transcript of his February 4, 2014,
the Supreme Court providently exercised its discretion in
denying that branch of the plaintiff's motion which was
pursuant to CPLR 3126 to strike the Goldstein defendants'
answer. The drastic remedy of striking an answer is
inappropriate absent a clear showing that a defendant's
failure to comply with discovery demands is willful and
contumacious (see Zubaidi v Hasbani, 136 A.D.3d 708;
JPMorgan Chase Bank, N.A. v New York State Dept. of Motor
Vehs., 119 A.D.3d 903). Under the circumstances, the
plaintiff did not make a clear showing that the Goldstein
defendants' failure to timely comply with certain
discovery demands was willful and contumacious such that the
drastic remedy of striking their answer was warranted
(see Dutchess Truck Repair, Inc. v Boyce, 120 A.D.3d
the Supreme Court improvidently exercised its discretion in
denying that branch of the plaintiff's motion which was
to preclude the defendants from offering the printouts as
evidence at trial unless the defendants produced the person
who obtained the printouts for a deposition, because the
plaintiff denied that the printouts were ...