Our Appellate Practice Team Convinces the Appellate Division to Reverse a Trial Judge Who Was Too Lenient on a Plaintiff Who Failed to Comply With Discovery Orders

Appellate Partner Dave Zegarelli obtained an appellate reversal of a lower court order which denied our motion for summary judgment dismissal of the complaint. Our motion sought to enforce a prior self-executing conditional preclusion order which became absolute when plaintiff failed to fully comply with it. The prior preclusion order dictated an all-or-nothing penalty: anything less than plaintiff’s full compliance would result in plaintiff being precluded from presenting any evidence whatsoever on the issues of liability and damages at trial.

The impact of such preclusion was to make it impossible for plaintiff to ever make out a prima facie case of liability against us. Plaintiff had a history of violating 22 prior discovery orders spanning a 7-year history. Despite acknowledging the fact that plaintiff had failed to fully comply with the preclusion order, and the fact that plaintiff never moved to vacate her default in complying with the preclusion order, and the fact that she failed to show a reasonable excuse for defaulting and a meritorious medical malpractice cause of action, the lower court still threw plaintiff a lifeline by denying summary judgment in our favor and giving her yet another—i.e., 23rd—chance to comply with discovery.

On appeal, the Appellate Division accepted all of our arguments for reversal and dismissed the complaint. This decision is a big win for the defense bar because it serves as a warning to plaintiffs of what can happen to them if they furnish insufficiently-detailed bills of particulars and that they cannot chronically violate discovery orders with impunity.

* Attorney advertising. Prior successful results do not guarantee a similar outcome.

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