SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

628 

CA 12-01411 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ. 

 

EDWARD A. LEGARRETA, M.D., PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

MELISSA A.L. NEAL, M.D., AND TWENTY 20 EYE CARE 

AND AESTHETIC OCULOPLASTIC MEDICINE, PLLC, 

DEFENDANTS-APPELLANTS. 

------------------------------------------------ 

MELISSA NEAL, M.D., PLAINTIFF-APPELLANT,

V

 

EDWARD A. LEGARRETA, M.D., LEGARRETA EYE CENTER, 

AND SALLY LEGARRETA, DEFENDANTS-RESPONDENTS. 

(APPEAL NO. 2.) 

MYERS, QUINN & SCHWARTZ, LLP, WILLIAMSVILLE (JAMES I. MYERS OF

COUNSEL), FOR DEFENDANTS-APPELLANTS AND PLAINTIFF-APPELLANT. 

JAECKLE FLEISCHMANN & MUGEL, LLP, BUFFALO (BRADLEY A. HOPPE OF

COUNSEL), FOR PLAINTIFF-RESPONDENT AND DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (John A.

Michalek, J.), entered January 25, 2012. The order, among other

things, directed that the answer of defendants-appellants shall be

stricken if a patient list was not produced by February 1, 2012. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: These four appeals arise out of two consolidated

actions. Edward A. Legarreta, M.D. commenced the first action against

Melissa A.L. Neal, M.D. and Twenty 20 Eye Care and Aesthetic

Oculoplastic Medicine, PLLC (Twenty 20) (collectively, defendants)

seeking damages for, inter alia, Dr. Neal’s alleged breach of her

employment contract with Dr. Legarreta and misappropriation of trade

secrets (hereafter, contract action). Dr. Neal thereafter commenced

the second action against Dr. Legarreta, Sally Legarreta (Sally), who

is Dr. Legarreta’s wife, and the Legarreta Eye Center (collectively,

Legarretas) seeking damages for, among other things, injuries she

allegedly sustained as a result of an assault by Sally (hereafter,

personal injury action). In appeal No. 1, defendants, as limited by

their brief, appeal from an order insofar as it granted that part of

Legarretas’ motion seeking to compel defendants to produce a complete
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CA 12-01411 

list of all of Dr. Neal’s patients in the contract action, and

authorizations for the release of medical records relating to her

neck, shoulder, arm, wrist, and hand in the personal injury action. 

In appeal No. 2, defendants, as limited by their brief, appeal from an

order insofar as it granted that part of Legarretas’ motion seeking an

order striking defendants’ answer in the contract action in the event

that defendants failed to produce a complete patient list by February

1, 2012. In appeal No. 3, defendants appeal from an order and

judgment that, inter alia, granted that part of Legarretas’ motion for

a default judgment against defendants in the contract action pursuant

to the self-executing order in appeal No. 2. In appeal No. 4, Dr.

Neal appeals from an order and judgment granting that part of the

Legarretas’ motion to strike her complaint in the personal injury

action.

Initially, we note that appeal No. 1 must be dismissed inasmuch

as the underlying order was superseded by the order in appeal No. 2

(see Wall v Villa Roma Resort Lodges, Inc., 299 AD2d 351, 351; see

generally Matter of Eric D. [appeal No. 1], 162 AD2d 1051, 1051). 

With respect to the remaining appeals, CPLR 3126 provides that “[i]f

any party . . . refuses to obey an order for disclosure or wilfully

fails to disclose information which the court finds ought to have been

disclosed . . . , the court may make such orders with regard to the

failure or refusal as are just,” including “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” (CPLR

3126 [3]). “Generally, the nature and degree of the penalty to be

imposed pursuant to CPLR 3126 against a party who refuses to comply

with court-ordered discovery is a matter within the discretion of the

court” (Mahopac Ophthalmology, P.C. v Tarasevich, 21 AD3d 351, 352;

see Kihl v Pfeffer, 94 NY2d 118, 123; Sugar Foods De Mexico v

Scientific Scents, LLC, 88 AD3d 1194, 1196; Hill v Oberoi, 13 AD3d

1095, 1096). The language in CPLR 3126 that “permits courts to

fashion orders as are just . . . broadly empowers a trial court to

craft a conditional order—an order that grants the motion and imposes

the sanction unless within a specified time the resisting party

submits to the disclosure” (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 79

[internal quotation marks omitted]; see Patrick M. Connors, Practice

Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:10).

We conclude with respect to appeal No. 2 that Supreme Court

properly exercised its discretion in granting a conditional order

striking the answer in the contract action unless defendants produced

Dr. Neal’s patient list by February 1, 2012 (see Pugliese v Mondello,

67 AD3d 880, 881, lv dismissed 14 NY3d 873). Dr. Legarreta first

demanded the patient list in July 2011 and, despite two motions to

compel, Dr. Neal failed to turn over her patient list. In a bench

decision dated December 1, 2011, the court directed Dr. Neal to

produce “a complete list of all of her patients, including names,

addresses and dates of treatment, . . . by December 22, 2011,” and

specifically instructed the Legarretas that they could move to strike

defendants’ answer in the contract action in the event Dr. Neal failed

to comply. That decision was reduced to an order entered December 19,
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CA 12-01411 

2011, i.e., the order in appeal No. 1 (hereafter, December 2011

order).

Defendants, however, failed to produce a patient list by the

court-imposed deadline, and the Legarretas moved to strike defendants’

answer based upon defendants’ willful violation of the December 2011

order. In a bench decision dated January 12, 2012, the court

determined that Dr. Neal intentionally violated the December 2011

order inasmuch as she provided no basis for her failure to produce the

patient list. By order entered January 25, 2012, i.e., the order in

appeal No. 2, the court directed that defendants’ answer in the

contract action would “be stricken immediately” if they did not

produce the patient list “on or before February 1, 2012” (hereafter,

January 2012 conditional order).

On February 1, 2012, the deadline set forth in the January 2012

conditional order, defendants sought a stay from a justice of this

Court pending their appeal from the December 2011 order and the

January 2012 “decision.” Although a justice of this Court signed a

temporary stay of enforcement, it thereafter became apparent that

defendants had not filed a notice of appeal from the January 2012

conditional order and thus that this Court had no jurisdiction to

grant relief with respect to that order (see CPLR 5519 [c]). 

Defendant’s appeal from the December 2011 order had been rendered moot

by the subsequent order, as noted above. Inasmuch as the temporary

stay had no effect on the January 2012 conditional order, which was

self-executing, defendants’ answer was stricken when they failed to

produce the patient list by February 1, 2012 (see Gibbs, 16 NY3d at

82-83; Foster v Dealmaker, SLS, LLC, 63 AD3d 1640, 1641, lv denied 15

NY3d 702; Zouev v City of New York, 32 AD3d 850, 850-851). Even

assuming, arguendo, that the temporary stay extended the deadline for

compliance with the conditional order, we conclude that the January

2012 conditional order became absolute when defendants failed to turn

over the patient list immediately upon the expiration of the stay. 

It is well established that, in order to “obtain relief from the

dictates of a conditional order . . . , the defaulting party must

demonstrate (1) a reasonable excuse for the failure to produce the

requested items and (2) the existence of a meritorious claim or

defense” (Gibbs, 16 NY3d at 80). Here, defendants failed to establish

a reasonable excuse for their failure to comply with the conditional

order (see Lee v Arellano, 18 AD3d 620, 621; cf. Zouev, 32 AD3d at

850). Notably, defendants had almost seven months within which to

comply with the Legarretas’ demand for Dr. Neal’s patient list. As

noted above, the court first ordered Dr. Neal to turn over the patient

list in December 2011. Instead of seeking an extension of time to

comply with that order or a stay of enforcement thereof, defendants

simply ignored the court-ordered deadline. With respect to the

January 2012 conditional order, defendants did not produce the patient

list as ordered by February 1, 2012 and, instead, waited until that

date to make a defective stay application.

Although defendants contend that Dr. Neal’s failure to turn over

the patient list by February 1, 2012 was not willful or contumacious,
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CA 12-01411 

it is well settled that, “where a conditional order ha[s] previously

been entered based on the court’s findings that a party ha[s] caused

delay and failed to comply with the court’s discovery orders, the

court [i]s not required to find that [the defaulting party]’s conduct

in failing to comply with the conditional order was ‘willful’ ”

(Keller v Merchant Capital Portfolios, LLC, 103 AD3d 532, 533; see

Gibbs, 16 NY3d at 82; Siegel, NY Prac § 367 at 608 [4th ed 2005]). In

any event, the court here concluded that “the uncontradicted evidence

shows that this time Dr. Neal’s refusal to comply with the Court’s

order was indeed willful and contumacious.”

Inasmuch as defendants failed to demonstrate a reasonable excuse

for their violation of the conditional order, we conclude with respect

to the order and judgment in appeal No. 3 that the court properly

granted Legarretas’ motion for entry of a default judgment against

defendants on all of the remaining causes of action in the contract

action (see Keller, 103 AD3d at 533; Sugar Foods De Mexico, 88 AD3d at

1196; Callaghan v Curtis, 48 AD3d 501, 502; cf. Gibbs, 16 NY3d at 83).

We conclude with respect to appeal No. 4 that the court did not

abuse its discretion in striking Dr. Neal’s complaint in the personal

injury action based upon her failure to disclose prior treatment for

injuries to her neck and left arm. It is well settled that “[w]hile

the nature and degree of the penalty to be imposed on a motion

pursuant to CPLR 3126 is a matter of the Supreme Court’s discretion,

striking a pleading is appropriate [only] where there is a clear

showing that the failure to comply with discovery demands is willful,

contumacious, or in bad faith” (Hill, 13 AD3d at 1096 [internal

quotation marks omitted]; see Luppino v Mosey, 103 AD3d 1117, 1119;

Hann v Black, 96 AD3d 1503, 1504). “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” (Flynn v City of New York, 101 AD3d 803, 805; see Doherty v

Schuyler Hills, Inc., 55 AD3d 1174, 1176). “Once a moving party

establishes that the failure to comply with a disclosure order was

willful, contumacious or in bad faith, the burden shifts to the

nonmoving party to offer a reasonable excuse” (Hann, 96 AD3d at 1504-

1505 [internal quotation marks omitted]).

Here, we conclude that the Legarretas established that Dr. Neal’s

failure to disclose her prior treatment was willful or contumacious

based upon her repeated failure to produce requested medical

authorizations and defendants’ overall pattern of noncompliance in

both the contract and personal injury actions (see Doherty, 55 AD3d at

1176; see generally Hann, 96 AD3d at 1505; Hill, 13 AD3d at 1096). 

The Legarretas first requested authorizations for “all medical and

hospital records relating to the physical condition of [Dr. Neal] as

set forth in the plaintiff’s complaint” in July 2011. After the

Legarretas made a motion to compel, Dr. Neal produced authorizations

that were limited to treatment she received after June 12, 2009, the

date of the alleged assault. The Legarretas thereafter demanded

production of “all of Dr. Neal’s medical records, without any kind of

temporal limitation, relating in any way to her neck and the arm,

wrist and hand that are the subject of this action” (emphasis added). 
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CA 12-01411 

The Legarretas noted in correspondence with counsel for defendants

that “Dr. Neal obviously treated with other physicians prior to June

12, 2009, including physicians in the locations she lived in prior to

coming to Buffalo in 2006, including . . . Pennsylvania . . . We need

authorizations from all such physicians, without any kind of temporal

limitation, relating in any way to her neck and the arm, wrist and

hand that are the subject of this action.” 

When defendants failed to provide the requested authorizations,

the Legarretas filed another motion to compel in November 2011 seeking

to strike defendants’ complaint in the personal injury action unless

Dr. Neal produced “complete medical authorizations for each and every

physician she has treated with regarding injuries to her neck,

shoulder, arm, wrist and hand that [were] the subject of th[at]

action.” The court granted the Legarretas’ motion and ordered Dr.

Neal to produce authorizations for the disclosure of all of her “adult

medical records, i.e.[,] after her 21st birthday,” relating to any

treatment of her neck, shoulder, arm, wrist, and hand, both before and

after the incident. In response, Dr. Neal provided revised

authorizations that were again limited to medical providers she

treated with after the date of the incident. In a January 2012

affirmation, Dr. Neal averred that she had produced authorizations

concerning “all medical records since [she] was 21 years of age for

treatment related to [her] ‘neck, shoulder, arm, wrist and hand.’ ” 

Further, in a January 2012 deposition, Dr. Neal unequivocally

testified that she experienced no symptoms and sought no medical

treatment with respect to her left shoulder, arm, wrist, or hand prior

to the June 12, 2009 incident, including during the four years she

attended medical school in Pennsylvania. 

Notwithstanding Dr. Neal’s assertion, the Legarretas requested

medical authorizations for doctors she treated with in Pennsylvania. 

In May 2012, Dr. Neal’s new attorney finally provided the requested

authorizations. The medical records produced thereto revealed that,

despite her sworn assertions to the contrary, Dr. Neal had indeed

sought treatment for her neck and left arm prior to the incident at

issue. In November 1996, Dr. Neal went to two different emergency

rooms on three consecutive days after she was involved in a motor

vehicle accident. Although Dr. Neal asserted that she simply “did not

recall” those three hospital visits, we conclude that the court did

not abuse its discretion in rejecting her excuse, particularly in

light of a similar situation that occurred in 2011 in the contract

action. 

We thus conclude that the court did not abuse its discretion in

determining that Dr. Neal’s failure to reveal her prior injuries and

her attempts to frustrate the Legarretas’ access to relevant medical

records was willful and contumacious, and that her alleged inability

to recall those prior injuries did not constitute a reasonable excuse

(see Hill, 13 AD3d at 1096; see also Arpino v F.J.F. & Sons Elec. Co.,

Inc., 102 AD3d 201, 208-209; Roug Kang Wang v Chien-Tsang Lin, 94 AD3d

850, 852; Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat

Inc., 94 AD3d 491, 492). The court therefore properly exercised its

discretion in striking Dr. Neal’s complaint in the personal injury 
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CA 12-01411 

action (cf. Hill, 13 AD3d at 1096).

Entered: July 5, 2013 Frances E. Cafarell

Clerk of the Court