The Second Department reversed the dismissal of a lower court based on a Plaintiff’s failure to narrow down deposition demands. The case of Rezak v. New York Presbyterian Hospital was commenced following a claim of medical malpractice in 2014. In December of 2017, the defendant moved pursuant to CPLR §3216 to dismiss the complaint for a failure to prosecute and additionally based on CPLR §3126 for a failure to comply with a court Order. The court Order referred to in the motion was an Order to narrow the demands to depose witnesses affiliated with the Defendant. The Supreme Court of Queens County dismissed the claim under both CPLR sections.
On review, the Second Department panel reviewed the dismissal under both CPLR sections. First, the panel reviewed CPLR §3216 which reads: “Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party’s pleading on terms.” The CPLR section requires the moving party or the Court to serve a written demand to resume prosecution of the action before a dismissal is warranted.
In the case at bar, the Second Department took issue with the dismissal pursuant to CPLR §3216 because neither the defendant nor the Court served the requisite 90-day notice upon the plaintiff. Under those circumstances, the panel found that the lower court was not authorized to dismiss the complaint pursuant to CPLR §3216.
Next, the panel reviewed the dismissal of the complaint pursuant to CPLR §3126(3) which allows a court to strike the pleadings, stay further pleadings, or dismissing the action against a disobedient party who does not comply with a court order at the time a deposition is taken. The Court recognized that the remedy of a dismissal is “only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious.” In that case, the defendant would have been required to show that there was a willful and contumacious failure to disclose which in the Court’s opinion, did not occur. With that being said, the Court did agree that the length of the pendency of the action because of the dispute over the breadth of the discovery demands warranted some sort of punishment. Because the plaintiff failed to tailor their demands in regards to the scope of the depositions, and that contributed to the length of time of the action, the Court found that all further disclosure was forfeited by the plaintiff.
In conclusion, the Second Department panel reversed the dismissal of the lower court and remitted the case to the Supreme Court of Queens County for further proceedings. To read a full copy of the decision, click here.