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FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
----------------------------------------X
FITHSROY CARGILL BY THE ADMINISTRATOR OF : Index No: 28244/2020E
HIS ESTATE JOAN CARGILL and JOAN CARGILL :
Individually, :
Plaintiff, :
:
- against – :
:
LENOX HILL HOSPITAL, NORTHWELL HEALTH,
:
INC., NORTHWELL HEALTHCARE, INC., NORTH
:
SHORE – LIJ NETWORK, INC., NORTHSHORE-LIJ
HEALTH SYSTEM, MONTEFIORE MEDICAL :
CENTER, MONTEFIORE NEW ROCHELLE :
HOSPITAL, SCHAFFER EXTENDED CARE :
CENTER, MONTEFIORE HEALTH SYSTEM, INC.,
AFFIRMATION IN SUPPORT
CENTERLIGHT HEALTH SYSTEM, INC.,
OF MOTION TO DISMISS
CENTERLIGHT HEALTHCARE, INC.,
CENTERLIGHT CERTIFIED HOME HEALTH
AGENCY, VISITING NURSE SERVICE OF NEW
YORK, VISITING NURSE SERVICE OF NEW YORK
HOME CARE, VISITING NURSE SERVICE OF NEW
YORK HOME CARE II, CONCEPTS OF
INDEPENDENCE, INC., CALVARY HOSPITAL,
INC. and “JOHN DOE” “JANE ROE” and “ABC INC.”
1-20 presently unknown healthcare providers,
individuals and agencies
Defendants.
----------------------------------------X
VICTORIA S.B. SHORE, an attorney duly admitted to the practice before the Courts of the
State of New York, being duly sworn, deposes and says:
1. I am an attorney duly admitted to practice law in the Courts of the State of New
York and an associate of the law firm SHEELEY LLP, attorneys for defendants, SCHAFFER
EXTENDED CARE CENTER, (herein “SCHAFFER” or “this defendant”). As such, I am
familiar with the facts and circumstances herein based on my review of the file maintained by
this firm.
Error! Unknown document property name.
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2. This Affirmation is submitted in support of the within motion seeking an Order:
a) Dismissing the above-entitled action with prejudice, pursuant to CPLR
§3126(3), for plaintiff’s willful and intentional failure to comply with
defendants’ discovery demands; or in the alternative
b) Precluding plaintiff from presenting any evidence in support of her claims
at trial, Pursuant to CPLR §3126(2); or in the alternative
c) Pursuant to CPLR §3124 and §3126, an Order by the Court compelling
plaintiff to provide discovery by a date certain, and that failure to comply
with said Order will result in the dismissal of this action with prejudice; and
d) Granting SCHAFFER EXTENDED CARE CENTER such other and
further relief as the Court deems just and proper.
PRELIMINARY STATEMENT
3. SCHAFFER respectfully submits that this motion should be granted in full, as the
plaintiff has willfully failed to provide responses to multiple long outstanding discovery
demands. By refusing to comply with basic discovery obligations, as set out below, plaintiff
has unduly prejudiced the defendants, and have denied SCHAFFER the opportunity to properly
defend this action.
PROCEDURAL BACKGROUND
4. This action, with causes of action sounding in medical/nursing malpractice;
negligence; lack of informed consent; and wrongful death relates to the alleged development
and progression of pressure ulcer injuries sustained by the plaintiff’s decedent FITZROY
CARGILL, while admitted to the defendant facilities.
5. This action was commenced with the filing of a Summons and Verified
Complaint on July 31, 2020 (NYSCEF Doc. #1 and 2). Issue was joined thereafter by
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SCHAFFER on September 8, 2020 (NYSCEF Doc. #78). On September 14, 2020,
SCHAFFER served a Demand for a Verified Bill of Particulars and Combined Demands
(NYSCEF Doc. #79 and 80). As of this date, these demands remain outstanding.
6. On April 23, 2021, a good faith letter was sent to plaintiff’s counsel, advising
plaintiff that significant discovery remained outstanding and requested a response to this
defendant’s Verified Bill of Particulars and Combined Demands. On October 13, 2021, a
second good faith letter was sent to plaintiff, requesting overdue and outstanding discovery
responses. The letter requested that substantive responses be provided in the next twenty (20)
days to avoid motion practice. A copy of said good faith letters are annexed hereto as
Exhibit “A”. Plaintiff did not respond to or acknowledge said letters.
7. During this time, defendants LENOX HILL HOSPITAL, MONTEFIORE
MEDICAL CENTER & MONTEFIORE NEW ROCHELLE and CALVARY HOSPITAL
(“the co-defendants”) had also not received responses to Combined Demands or a Bill of
Particulars from plaintiff, and too were making good faith efforts for responses to same.
8. Plaintiff did not respond to or acknowledge this defendant or co-defendants’ good
faith letters.
9. On January 10, 2022, defendants MONTEFIORE MEDICAL CENTER and
MONTEFIORE NEW ROCHELLE HOSPITAL filed a motion to dismiss plaintiff’s Complaint
pursuant to CPLR §3126(3) for plaintiff’s willful and intentional failure to comply with
defendants’ discovery demands. (See, NYSCEF Doc. #123). Plaintiff has not responded to or
acknowledged said motion or any of defendants’ good faith letters.
10. On January 13, 2022, plaintiff wrote this defendant requesting a copy of
SCHAFFER’s certified records. On January 19, this defendant responded to plaintiff and
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advised that SCHAFFER was still waiting for outstanding discovery responses, specifically the
Bill of Particulars and Combined Demands. Plaintiff responded that they were waiting for a
copy of the certified records, for which this defendant responded and respectfully disagreed that
a certified copy of the records was required to respond to the outstanding Bill of Particulars or
Combined Demands. Plaintiff did not respond to this defendant, acknowledge or indicate when
said responses would be provided.
11. While plaintiff has provided the defendants with authorizations to obtain medical
records pertaining to plaintiff’s decedent medical treatment, all other pertinent discovery has
been completely ignored. Plaintiff has failed to provide the defendants with any details of this
action or the allegations made against the defendants. Pretrial discovery, to date, has been
impossible.
12. Accordingly, this motion has become necessary due to the continued willful and
contumacious failure to comply with the outstanding discovery demands, which are now over
one year and five months old.
ARGUMENT
13. SCHAFFER adopts the arguments set out in co-defendant MONTEFIORE
MEDICAL CENTER and MONTEFIORE NEW ROCHELLE HOSPITAL motion papers
(NYSCEF Doc. #s 121, 122, 123).
A. Dismissal Is Warranted Where A Party’s Conduct Is Shown To Be Willful And
Contumacious, as Herein
14. Simply, CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter
material and necessary in the prosecution or defense of an action, regardless of the burden of
proof.”
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15. Pretrial discovery is intended to allow each party to know as much about the
other’s claim as is fairly and appropriately possible. Padilla v. Damascus, 16 A.D. 2d 71, 225
N.Y.S. 2d 462 (1st Dept. 1962), aff’d, 12 N.Y.2d 1059, 239.
16. It is well established that a Bill of Particulars is an absolutely necessary item of
discovery that is central to the defense of any medical malpractice claim. The outstanding
Combined Demands also request such basic discovery as fact witness information, expert
witness information, collateral source information, proof of lost earnings, Medicaid/Medicare
lien information, and adverse party statements. The purpose of a Bill of Particulars is to
amplify the pleadings and afford the defendants a complete outline of the allegations in the
Complaint and thus provide a basis upon which the defendants can fashion a defense, as well as
to limit the proof and define the issues before trial. See North Way Engineering v. Felix
Industries, 77 NY2d 332 (1991); State of New York v. Horsemen's Benevolent and Protective
Associations, 34 AD2d 769 (1st Dept. 1970). The missing Combined Demands and Bills of
Particulars clearly fall within the scope of discovery that “ought to have been disclosed,” as
referenced above.
17. When a party "refuses to obey an order for disclosure or willfully fails to disclose
information which the court finds ought to have been disclosed," the Court may issue an Order
“prohibiting the disobedient party from supporting or opposing designated claims or defenses”
or “striking out pleadings or parts thereof.” See CPLR 3126.
18. CPLR § 3126 provided penalties for the failure to comply with discovery
demands. The statute process as follows:
1. If any party...or agent of a party... refuses to obey an order for disclosure or
willfully fails to disclose information which the court finds ought to have been
disclosed, pursuant to this article, the court may make such orders with regard to
the failure or refusal as are just, among them...
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2. An order prohibiting the disobedient party from supporting or opposing
designated claims or defenses, from producing in evidence designated things or
items of testimony, or from introducing any evidence of the physical, mental, or
blood condition sought to be determined, or from using certain witnesses; or
3. 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.
McKinney’s Consolidated Laws of New York Annotated, Civil Practice Law and Rules
§3126.
19. The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies
within the discretion of the trial court. 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, coupled with inadequate excuses for such default. Id
20. Similarly, pursuant to CPLR § 3042(c), if a party fails to respond to a demand for
a Bill of Particulars in a timely fashion, the party seeking the Bill of Particulars may move to
compel compliance or if such failure is willful, penalties pursuant to CPLR 3042(d) can be
imposed.
21. In this matter, this defendant specifically tried to resolve plaintiff’s outstanding
discovery without court intervention and provided plaintiff with dates to comply. For nearly a
year and a half, the plaintiff has failed, entirely, to provide the aforesaid basic and central
discovery. Despite this defendant’s attempts, plaintiff’s counsel continuously failed to provide
this defendant with discovery responses. Moreover, plaintiff’s counsel did not make any
attempt to contact this defendant to advise that discovery was forthcoming nor did plaintiff’s
counsel request more time to respond to the discovery in an attempt to avoid motion practice.
Plaintiff counsel’s actions and noncompliance thus far can be described as willful.
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22. As a result of this willful conduct and inexcusable delay, the moving defendants
have been unable to ascertain the nature of the respective claims against them, and have been
substantially prejudiced as a result. The exceedingly lengthy delay and plaintiff’s continued
noncompliance with the basic discovery demands and the multiple good faith requests for
discovery have established a pattern of willful and contumacious conduct in utter disregard of
the disclosure scheme set forth in the CPLR, warranting the dismissal of this complaint.
B. Alternatively, this Court should issue an Order compelling the plaintiff to provide
complete and proper responses to the moving defendants’ discovery demands, with
a conditional Order of dismissal if such discovery is not provided by a date certain.
23. Under CPLR §3124, "[i]f a person fails to respond to or comply with and request,
notice, interrogatory, demand, question or order under this article ... the party seeking
disclosure may move to compel compliance or a response." To the extent the instant action is
not dismissed pursuant to CPLR §3126, the moving defendants respectfully request that this
Honorable Court issue an Order pursuant to CPLR §3124 compelling the plaintiff to fully
respond to all outstanding discovery as set forth in Court Order as set forth above. It is
respectfully submitted that this Order should explicitly state that the plaintiff is to provide a
complete response to the outstanding Combined Demands along with Verified Bills of
Particulars as to each defendant setting forth the exact individualized claims of malpractice
with specific date(s) and location(s) of the alleged negligence as to each party. The moving
defendants also request that the order also mandate that the Bills of Particulars provide the
previously requested itemized documentary proof of any special damages.
24. Finally, SCHAFFER also respectfully submit that in light of the plaintiff’s
longstanding malfeasance, a self-executing conditional order of dismissal should be issued
requiring the plaintiff to provide complete and proper responses to all of the aforementioned,
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long overdue discovery by a date certain, and directing that any non-compliance shall result in
the immediate dismissal of the complaint in its entirety without the need for further
unnecessary motion practice. Plaintiff has had more than enough time and ample opportunity to
comply with her discovery obligations, and has offered no excuses whatsoever for failing to do
so. Accordingly, the plaintiff should not be allowed any further chances to delay discovery in
this matter; a conditional order of dismissal is therefore warranted.
WHEREFORE, your Affirmant respectfully requests that the within motion be granted
in its entirety, and that this Court issue an Order pursuant to CPLR §3126, dismissing the
plaintiff’s Complaint for failure to comply with a duly executed Court Order and provide fully
responsive Bills of Particulars and other duly demanded discovery or, alternatively; for an
Order pursuant to CPLR §3124, compelling the plaintiff to provide outstanding discovery by a
date certain and ordering dismissal of the Complaint upon plaintiff's failure to comply with this
Court's deadline, and for such other and further relief as to this Court may seem just and proper.
Dated: New York, NY
January 20, 2022
SHEELEY LLP
By:
VICTORIA S.B. SHORE, ESQ.
Attorneys for Defendant
SCHAFFER EXTENDED CARE CENTER
100 Wall Street, 19th Floor
New York, NY 10005
(646) 650-5952
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CERTIFICATION
Pursuant to Rule 202.8-b (Rule 17)
I hereby certify, pursuant to Rule 202.8-b (Rule 17) of the Uniform Rules for the Supreme Court
and County Court, that the total number of words in the foregoing Affirmation in Support,
exclusive of the caption and signature block is 1854. The document complies with the word-
count limit. I have relied on the word count of the word-processing system used to prepare the
document.
Dated: New York, NY
January 20, 2022
SHEELEY LLP
By:
VICTORIA S.B. SHORE, ESQ.
Attorneys for Defendant
SCHAFFER EXTENDED CARE CENTER
100 Wall Street, 19th Floor
New York, NY 10005
(646) 650-5952
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To: SONIN & GENIS, LLC
Attorneys for Plaintiff
One Fordham Plaza, Suite 907,
Bronx, NY 10458
(718) 561-4444
MARTIN CLEARWATER & BELL LLP
Attorneys for Defendants
NORTHWELL HEALTH INC.; NORTHWELL HEALTHCARE, INC.; and
LENOX HILL HOSPITAL
245 Main Street
White Plains, NY 10601
(914) 328-2969
AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP
Attorneys for Defendant
MONTEFIORE MEDICAL CENTER; and
MONTEFIORE NEW ROCHELLE HOSPITAL
600 Third Avenue
New York, NY 10016
(212) 593-6700
RUBIN PATERNITI GONZALEZ KAUFMAN, LLP
Attorneys for Defendant
CALVARY HOSPITAL, INC.
555 Fifth Avenue, 6th Floor
New York, NY 10017
(646) 809-3370
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Preview
FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------X FITHSROY CARGILL BY THE ADMINISTRATOR OF : Index No: 28244/2020E HIS ESTATE JOAN CARGILL and JOAN CARGILL : Individually, : Plaintiff, : : - against – : : LENOX HILL HOSPITAL, NORTHWELL HEALTH, : INC., NORTHWELL HEALTHCARE, INC., NORTH : SHORE – LIJ NETWORK, INC., NORTHSHORE-LIJ HEALTH SYSTEM, MONTEFIORE MEDICAL : CENTER, MONTEFIORE NEW ROCHELLE : HOSPITAL, SCHAFFER EXTENDED CARE : CENTER, MONTEFIORE HEALTH SYSTEM, INC., AFFIRMATION IN SUPPORT CENTERLIGHT HEALTH SYSTEM, INC., OF MOTION TO DISMISS CENTERLIGHT HEALTHCARE, INC., CENTERLIGHT CERTIFIED HOME HEALTH AGENCY, VISITING NURSE SERVICE OF NEW YORK, VISITING NURSE SERVICE OF NEW YORK HOME CARE, VISITING NURSE SERVICE OF NEW YORK HOME CARE II, CONCEPTS OF INDEPENDENCE, INC., CALVARY HOSPITAL, INC. and “JOHN DOE” “JANE ROE” and “ABC INC.” 1-20 presently unknown healthcare providers, individuals and agencies Defendants. ----------------------------------------X VICTORIA S.B. SHORE, an attorney duly admitted to the practice before the Courts of the State of New York, being duly sworn, deposes and says: 1. I am an attorney duly admitted to practice law in the Courts of the State of New York and an associate of the law firm SHEELEY LLP, attorneys for defendants, SCHAFFER EXTENDED CARE CENTER, (herein “SCHAFFER” or “this defendant”). As such, I am familiar with the facts and circumstances herein based on my review of the file maintained by this firm. Error! Unknown document property name. 1 of 10 FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 2. This Affirmation is submitted in support of the within motion seeking an Order: a) Dismissing the above-entitled action with prejudice, pursuant to CPLR §3126(3), for plaintiff’s willful and intentional failure to comply with defendants’ discovery demands; or in the alternative b) Precluding plaintiff from presenting any evidence in support of her claims at trial, Pursuant to CPLR §3126(2); or in the alternative c) Pursuant to CPLR §3124 and §3126, an Order by the Court compelling plaintiff to provide discovery by a date certain, and that failure to comply with said Order will result in the dismissal of this action with prejudice; and d) Granting SCHAFFER EXTENDED CARE CENTER such other and further relief as the Court deems just and proper. PRELIMINARY STATEMENT 3. SCHAFFER respectfully submits that this motion should be granted in full, as the plaintiff has willfully failed to provide responses to multiple long outstanding discovery demands. By refusing to comply with basic discovery obligations, as set out below, plaintiff has unduly prejudiced the defendants, and have denied SCHAFFER the opportunity to properly defend this action. PROCEDURAL BACKGROUND 4. This action, with causes of action sounding in medical/nursing malpractice; negligence; lack of informed consent; and wrongful death relates to the alleged development and progression of pressure ulcer injuries sustained by the plaintiff’s decedent FITZROY CARGILL, while admitted to the defendant facilities. 5. This action was commenced with the filing of a Summons and Verified Complaint on July 31, 2020 (NYSCEF Doc. #1 and 2). Issue was joined thereafter by 2 4856-3557-9401, v. 1 2 of 10 FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 SCHAFFER on September 8, 2020 (NYSCEF Doc. #78). On September 14, 2020, SCHAFFER served a Demand for a Verified Bill of Particulars and Combined Demands (NYSCEF Doc. #79 and 80). As of this date, these demands remain outstanding. 6. On April 23, 2021, a good faith letter was sent to plaintiff’s counsel, advising plaintiff that significant discovery remained outstanding and requested a response to this defendant’s Verified Bill of Particulars and Combined Demands. On October 13, 2021, a second good faith letter was sent to plaintiff, requesting overdue and outstanding discovery responses. The letter requested that substantive responses be provided in the next twenty (20) days to avoid motion practice. A copy of said good faith letters are annexed hereto as Exhibit “A”. Plaintiff did not respond to or acknowledge said letters. 7. During this time, defendants LENOX HILL HOSPITAL, MONTEFIORE MEDICAL CENTER & MONTEFIORE NEW ROCHELLE and CALVARY HOSPITAL (“the co-defendants”) had also not received responses to Combined Demands or a Bill of Particulars from plaintiff, and too were making good faith efforts for responses to same. 8. Plaintiff did not respond to or acknowledge this defendant or co-defendants’ good faith letters. 9. On January 10, 2022, defendants MONTEFIORE MEDICAL CENTER and MONTEFIORE NEW ROCHELLE HOSPITAL filed a motion to dismiss plaintiff’s Complaint pursuant to CPLR §3126(3) for plaintiff’s willful and intentional failure to comply with defendants’ discovery demands. (See, NYSCEF Doc. #123). Plaintiff has not responded to or acknowledged said motion or any of defendants’ good faith letters. 10. On January 13, 2022, plaintiff wrote this defendant requesting a copy of SCHAFFER’s certified records. On January 19, this defendant responded to plaintiff and 3 4856-3557-9401, v. 1 3 of 10 FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 advised that SCHAFFER was still waiting for outstanding discovery responses, specifically the Bill of Particulars and Combined Demands. Plaintiff responded that they were waiting for a copy of the certified records, for which this defendant responded and respectfully disagreed that a certified copy of the records was required to respond to the outstanding Bill of Particulars or Combined Demands. Plaintiff did not respond to this defendant, acknowledge or indicate when said responses would be provided. 11. While plaintiff has provided the defendants with authorizations to obtain medical records pertaining to plaintiff’s decedent medical treatment, all other pertinent discovery has been completely ignored. Plaintiff has failed to provide the defendants with any details of this action or the allegations made against the defendants. Pretrial discovery, to date, has been impossible. 12. Accordingly, this motion has become necessary due to the continued willful and contumacious failure to comply with the outstanding discovery demands, which are now over one year and five months old. ARGUMENT 13. SCHAFFER adopts the arguments set out in co-defendant MONTEFIORE MEDICAL CENTER and MONTEFIORE NEW ROCHELLE HOSPITAL motion papers (NYSCEF Doc. #s 121, 122, 123). A. Dismissal Is Warranted Where A Party’s Conduct Is Shown To Be Willful And Contumacious, as Herein 14. Simply, CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” 4 4856-3557-9401, v. 1 4 of 10 FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 15. Pretrial discovery is intended to allow each party to know as much about the other’s claim as is fairly and appropriately possible. Padilla v. Damascus, 16 A.D. 2d 71, 225 N.Y.S. 2d 462 (1st Dept. 1962), aff’d, 12 N.Y.2d 1059, 239. 16. It is well established that a Bill of Particulars is an absolutely necessary item of discovery that is central to the defense of any medical malpractice claim. The outstanding Combined Demands also request such basic discovery as fact witness information, expert witness information, collateral source information, proof of lost earnings, Medicaid/Medicare lien information, and adverse party statements. The purpose of a Bill of Particulars is to amplify the pleadings and afford the defendants a complete outline of the allegations in the Complaint and thus provide a basis upon which the defendants can fashion a defense, as well as to limit the proof and define the issues before trial. See North Way Engineering v. Felix Industries, 77 NY2d 332 (1991); State of New York v. Horsemen's Benevolent and Protective Associations, 34 AD2d 769 (1st Dept. 1970). The missing Combined Demands and Bills of Particulars clearly fall within the scope of discovery that “ought to have been disclosed,” as referenced above. 17. When a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed," the Court may issue an Order “prohibiting the disobedient party from supporting or opposing designated claims or defenses” or “striking out pleadings or parts thereof.” See CPLR 3126. 18. CPLR § 3126 provided penalties for the failure to comply with discovery demands. The statute process as follows: 1. If any party...or agent of a party... refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them... 5 4856-3557-9401, v. 1 5 of 10 FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 2. An order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental, or blood condition sought to be determined, or from using certain witnesses; or 3. 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. McKinney’s Consolidated Laws of New York Annotated, Civil Practice Law and Rules §3126. 19. The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the discretion of the trial court. 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, coupled with inadequate excuses for such default. Id 20. Similarly, pursuant to CPLR § 3042(c), if a party fails to respond to a demand for a Bill of Particulars in a timely fashion, the party seeking the Bill of Particulars may move to compel compliance or if such failure is willful, penalties pursuant to CPLR 3042(d) can be imposed. 21. In this matter, this defendant specifically tried to resolve plaintiff’s outstanding discovery without court intervention and provided plaintiff with dates to comply. For nearly a year and a half, the plaintiff has failed, entirely, to provide the aforesaid basic and central discovery. Despite this defendant’s attempts, plaintiff’s counsel continuously failed to provide this defendant with discovery responses. Moreover, plaintiff’s counsel did not make any attempt to contact this defendant to advise that discovery was forthcoming nor did plaintiff’s counsel request more time to respond to the discovery in an attempt to avoid motion practice. Plaintiff counsel’s actions and noncompliance thus far can be described as willful. 6 4856-3557-9401, v. 1 6 of 10 FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 22. As a result of this willful conduct and inexcusable delay, the moving defendants have been unable to ascertain the nature of the respective claims against them, and have been substantially prejudiced as a result. The exceedingly lengthy delay and plaintiff’s continued noncompliance with the basic discovery demands and the multiple good faith requests for discovery have established a pattern of willful and contumacious conduct in utter disregard of the disclosure scheme set forth in the CPLR, warranting the dismissal of this complaint. B. Alternatively, this Court should issue an Order compelling the plaintiff to provide complete and proper responses to the moving defendants’ discovery demands, with a conditional Order of dismissal if such discovery is not provided by a date certain. 23. Under CPLR §3124, "[i]f a person fails to respond to or comply with and request, notice, interrogatory, demand, question or order under this article ... the party seeking disclosure may move to compel compliance or a response." To the extent the instant action is not dismissed pursuant to CPLR §3126, the moving defendants respectfully request that this Honorable Court issue an Order pursuant to CPLR §3124 compelling the plaintiff to fully respond to all outstanding discovery as set forth in Court Order as set forth above. It is respectfully submitted that this Order should explicitly state that the plaintiff is to provide a complete response to the outstanding Combined Demands along with Verified Bills of Particulars as to each defendant setting forth the exact individualized claims of malpractice with specific date(s) and location(s) of the alleged negligence as to each party. The moving defendants also request that the order also mandate that the Bills of Particulars provide the previously requested itemized documentary proof of any special damages. 24. Finally, SCHAFFER also respectfully submit that in light of the plaintiff’s longstanding malfeasance, a self-executing conditional order of dismissal should be issued requiring the plaintiff to provide complete and proper responses to all of the aforementioned, 7 4856-3557-9401, v. 1 7 of 10 FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 long overdue discovery by a date certain, and directing that any non-compliance shall result in the immediate dismissal of the complaint in its entirety without the need for further unnecessary motion practice. Plaintiff has had more than enough time and ample opportunity to comply with her discovery obligations, and has offered no excuses whatsoever for failing to do so. Accordingly, the plaintiff should not be allowed any further chances to delay discovery in this matter; a conditional order of dismissal is therefore warranted. WHEREFORE, your Affirmant respectfully requests that the within motion be granted in its entirety, and that this Court issue an Order pursuant to CPLR §3126, dismissing the plaintiff’s Complaint for failure to comply with a duly executed Court Order and provide fully responsive Bills of Particulars and other duly demanded discovery or, alternatively; for an Order pursuant to CPLR §3124, compelling the plaintiff to provide outstanding discovery by a date certain and ordering dismissal of the Complaint upon plaintiff's failure to comply with this Court's deadline, and for such other and further relief as to this Court may seem just and proper. Dated: New York, NY January 20, 2022 SHEELEY LLP By: VICTORIA S.B. SHORE, ESQ. Attorneys for Defendant SCHAFFER EXTENDED CARE CENTER 100 Wall Street, 19th Floor New York, NY 10005 (646) 650-5952 8 4856-3557-9401, v. 1 8 of 10 FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 CERTIFICATION Pursuant to Rule 202.8-b (Rule 17) I hereby certify, pursuant to Rule 202.8-b (Rule 17) of the Uniform Rules for the Supreme Court and County Court, that the total number of words in the foregoing Affirmation in Support, exclusive of the caption and signature block is 1854. The document complies with the word- count limit. I have relied on the word count of the word-processing system used to prepare the document. Dated: New York, NY January 20, 2022 SHEELEY LLP By: VICTORIA S.B. SHORE, ESQ. Attorneys for Defendant SCHAFFER EXTENDED CARE CENTER 100 Wall Street, 19th Floor New York, NY 10005 (646) 650-5952 9 4856-3557-9401, v. 1 9 of 10 FILED: BRONX COUNTY CLERK 01/21/2022 12:23 PM INDEX NO. 28244/2020E NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/21/2022 To: SONIN & GENIS, LLC Attorneys for Plaintiff One Fordham Plaza, Suite 907, Bronx, NY 10458 (718) 561-4444 MARTIN CLEARWATER & BELL LLP Attorneys for Defendants NORTHWELL HEALTH INC.; NORTHWELL HEALTHCARE, INC.; and LENOX HILL HOSPITAL 245 Main Street White Plains, NY 10601 (914) 328-2969 AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Defendant MONTEFIORE MEDICAL CENTER; and MONTEFIORE NEW ROCHELLE HOSPITAL 600 Third Avenue New York, NY 10016 (212) 593-6700 RUBIN PATERNITI GONZALEZ KAUFMAN, LLP Attorneys for Defendant CALVARY HOSPITAL, INC. 555 Fifth Avenue, 6th Floor New York, NY 10017 (646) 809-3370 10 4856-3557-9401, v. 1 10 of 10