Luppino v. MoseyLuppino v. Mosey
It is hereby ordered that the order so appealed from is unanimously modified on the law by vacating the first through third ordering paragraphs and denying that part of the motion of defendant Catholic Health System, doing business as Kenmore Mercy Hospital, for leave to renew and as modified the order is affirmed without costs, the оrder entered October 28, 2010 referring the matter to a judicial hearing officer is reversed, and the matter is remitted to Supreme Court, Erie County, for further proceedings in аccordance with the following memorandum: We agree with plaintiff that Supreme Court erred in granting that part of the motion of Catholic Health System, doing business as Kenmore Mercy Hospital (defendant), seeking leave to renew its opposition to plaintiff‘s motion
Contrary to the further contention of plaintiff, however, the court properly granted that part of defendant‘s motiоn for leave to reargue its opposition to plaintiff‘s motion to strike defendant‘s answer on the ground that the court misapprehended the facts and the law in determining that motion (see
“We have repeatedly held that the striking of a pleading is appropriate only where there is a clear showing that the failurе to comply with discovery demands is willful, contumacious, or in bad faith” (Hann v Black, 96 AD3d 1503, 1504 [2012] [internal quotation marks omitted]). “Once a moving party establishes that the failure to comply with a disclоsure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse” (WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d 1616, 1619 [2011]). Here, plaintiff met his initial burden, “thereby shifting the burden to dеfendant to offer a reasonable excuse” for its noncompliance with the disclosure order (Hill v Oberoi, 13 AD3d 1095, 1096 [2004]). Defendant, however, offered such an excuse by submitting the 2007 affidаvit, and the court should have determined the merits of that excuse.
We agree with plaintiff, however, that, upon reargument, the court abused its discretion in referring the matter to a judicial hearing officer (JHO). We therefore reverse the order of referral.
Here, the issue referred to the JHO was “whether [defendant] complied with the [April 2007 order],” i.e., whether the relevant documents sought to be produced by plaintiff exist and are able to bе produced. We conclude that defendant failed to establish any “exceptional condition” warranting a referral of that issue to a JHO (
“[w]hile the issue raised in this case may not be too summarily determined, there is no justification in protracting the proceedings as is likely to occur on a reference, nor in imposing the attendant expense on the parties. The court is eminently capable оf determining the issue expeditiously, and without extraordinary impingement on the regular business of the court.”
The only justification offered by defendant in support of referenсe to a JHO was that the JHO to whom the issue was referred was the judge who granted the April 2007 order prior to his retirement from the bench and thus that he could provide “insight” into the mеaning of that order. We conclude, however, that there was no need for an interpretation or explanation of the April 2007 order, which speaks for itself. Thе order simply required defendant to produce, inter alia, the contract documents in question. The only issue that remained was whether defendant had complied with thоse portions of the April 2007 order, an issue that did not require the knowledge or particular expertise of the JHO.
We therefore further modify the order on appeal by vacating those parts of the order confirming and adopting the JHO‘s report and recommendation and finding that defendant complied with the April 2007 order. We remit the matter to Supreme Court to determine whether defendant complied with the April 2007 order and, if not, whether defendant has “willfully and contumaciously” refused to produce the requested documents such that the 2010 order striking defendant‘s answer should stand. We note that, until the issue of defendant‘s compliance with the April 2007 order is determined after an evidentiary hearing, it is premature to consider plaintiff‘s contention that the court erred in vacating the 2010 order.
Finally, in light of our conclusion that the matter was improperly referred to a JHO, we need not address plaintiff‘s further contention that the JHO should have conducted an evidentiary hearing and that he exceeded the scope of his authority. Present—Smith, J.P., Peradotto, Carni, Sconiers and Whalen, JJ.