Ernest Saint Cloud v. Steven Koehler, et al.

Summary

The Appellate Division, Second Department, affirmed an order denying the plaintiff's motion for summary judgment on liability and to strike the defendants' answers in a medical malpractice action. The court held that the discovery order was not self-executing and that the plaintiff failed to establish willful and contumacious noncompliance or a prima facie entitlement to summary judgment because no expert evidence of malpractice was presented.

Holdings

1. The August 2, 2022 order was not a self-executing order of preclusion because it expressly required an additional motion pursuant to CPLR 3126(2). In addition, the plaintiff failed to establish that the deposition delay resulted from willful and contumacious conduct by the defendants, so the drastic remedies of striking the answers or precluding evidence were unwarranted.
2. The plaintiff was not entitled to summary judgment on liability because he failed to submit expert evidence establishing a departure from accepted standards of medical care that was a proximate cause of his injuries.

Questions Presented

1. Whether the August 2, 2022 discovery order automatically precluded the defendants from offering evidence or required an additional motion under CPLR 3126(2).
2. Whether the plaintiff established willful and contumacious noncompliance sufficient to warrant striking the defendants' answers or precluding evidence.
3. Whether the plaintiff established prima facie entitlement to summary judgment on liability in the medical malpractice action.

Disposition

affirmed