Discovery penalty: dismissalApril 30, 2019

Queens-Roosevelt Med. Rehabilitation, P.C. v Response Ins. Co., 2019 NY Slip Op 50608(U)(App. Term 2d Dept. 2019)

“Contrary to the finding of the Civil Court, the questions at issue were “designed to elicit information which was material and necessary to the appellant’s defense of this action” (Parker v Ollivierre, 60 AD3d 1023, 1024 [2009]), as Dr. McGee’s involvement in other medical service corporations, including how much time he spent at those entities, could necessarily affect his involvement in the daily activities and management of plaintiff, and were relevant to whether Dr. McGee was plaintiff’s “bona fide owner [and] operator.” Moreover, counsel’s “directions not to answer [the questions at issue] were not otherwise authorized by [Uniform Rules for the Conduct of Depositions] 22 NYCRR [§] 221.2” (id. at 1024). In light of plaintiff’s failure to fully comply with discovery over many years, plaintiff’s refusal to answer the questions at issue may be presumed to be willful and contumacious (see e.g. Honghui Kuang v MetLife, 159 AD3d 878 [2018]); therefore, a sanction is warranted. Given that certain of plaintiff’s claims have already been struck based upon its noncompliance with discovery and that Dr. McGee has already been deposed twice, we find that striking plaintiff’s complaint is the appropriate sanction (see id.).”

This case is interesting for a bunch of reasons. First, Dr. McGee should have had shells on his payroll to administer the tests and treatments at his facility, so he could account for his large practice. Second, the direction not to answer a question is just dangerous unless the question is palpably improper. Example: “What’s her motivation for saying that you lied”. Clearly palpably improper. Better question: “Are you aware of why she said you lied?” But, I suppose McGee asked for this outcome.

Yet, don’t you think in light of Dr. McGee appearing twice – a remedy short of dismissal with prejudice (SOL makes it with prejudice) – perhaps a third deposition or preclusion might be a proper remedy?