Thomas v. Benedictine HospitalThomas v. Benedictine Hospital
Aрpeal from an order of the Supreme Court (Bradley, J.), entered April 26, 2001 in Ulster County, which, inter alia, denied plaintiff’s motion to compel defendant Benedictine Hospital to produce certain individuals for examination.
Plaintiff was a patient at defendant Benedictine Hospital for approximately 2X!% weeks and, during that time, received trеatment for a leg fracture from defendant Thomas S. Ingarra, a physician on the staff of the hospital, and defendant John V.
At a preliminary conference on this matter, Supreme Court established a scheduling order which included specific dates for deposing all parties. The deposition of the hospital was scheduled for October 5, 2000 and of Ioia for November 9 and 10, 2000. As multiple individuals rendered care to plaintiff during her hospitalization, thе hospital asked plaintiff to identify which individuals she wanted produced for the October 5th deposition. Rather than seeking to depose any individual who actually rendered сare to plaintiff, plaintiff requested that the hospital produce a “nursing administrator with personal knowledge as to nursing guidelines, protocol and procedure during the period of plaintiffs admission.”
The hospital produced its quality improvement coordinator, whose responsibilities included educating new employees and searching fоr alternative methods of quality improvement, but who previously served the hospital as a staff nurse, nursing supervisor and nurse manager. Dissatisfied with the scope of this witness’s testimony — as shаped, in part, by numerous objections from opposing counsel to the form and content of the questions posed by plaintiffs counsel — plaintiff unilaterally canceled the scheduled deposition of Ioia and requested that the hospital produce for deposition their vice-president of nursing and two administrative directors. Plaintiff asserted, and continues to assert, that to effectively depose the named physicians, she must first have the opportunity to further depose the hospital. At a Decembеr 12, 2000 status conference, Supreme Court granted plaintiff leave to make written application for further deposition of the hospital, but specifically denied рlaintiffs request to hold the deposition of Ioia in abeyance until after the hospital had been further deposed. Instead, the court ordered that Ioia be deposed on the earliest date that he was available.
On the same day, Ioia’s attorneys notified plaintiffs counsel that Ioia would be available for deposition on Jаnuary 12, 2001. Plaintiff, however, declined to depose Ioia on that day, asserting that counsel was unavailable and that, in any event, Ioia’s deposition would not be scheduled until Suрreme Court resolved plaintiffs application for further deposition of the hospital. The following day, plaintiff sought such further deposition by order to show cause. Ioiа and Hudson Valley cross-moved, seeking either to dismiss the complaint against them
Supreme Court denied, without prejudice, plaintiffs motion to further depose the hospital, finding that it was premature for plaintiff to depose the three nursing supеrvisors — who undisputedly were not directly involved in plaintiffs care — prior to ascertaining the specific facts surrounding the care and treatment which plaintiff received by, intеr alia, deposing her treating physicians. The court granted the cross motion of Ioia and Hudson Valley, dismissing the complaint against them in light of plaintiffs failure to comply with its prеvious order directing that Ioia be deposed at his earliest convenience. Plaintiff appeals.
Turning first to plaintiffs argument that Supreme Court erred in denying her request to depose the hospital further prior to deposing her treating physicians, it is well settled that a trial court’s decision regarding the scope of discovery will not be disturbed on appeal absent a clear abuse of discretion (see, Saratoga Harness Racing v Roemer,
Even assuming the original witness produced was inadequate, Supreme Court denied plaintiffs request without prejudice, thereby rendering no decision as to whether the testimony sought ultimatеly may be necessary to prove plaintiffs case. The court merely rejected plaintiffs argument that it was necessary to depose the nursing administrators prior to dеposing the doctors, finding that plaintiff could seek discovery of the
Next, the record clearly demonstrates that plaintiff unjustifiably failed to comply with Supreme Court’s order directing her to depose Ioia on the earliest date that he was available to be deposed. Indeed, immediately after the court rejected her request to adjourn thе doctor’s deposition until further depositions of the hospital could be conducted, plaintiff refused to schedule Ioia’s deposition, insisting that the hospital depositiоns must first be accomplished. However, while we recognize that the nature of the penalty to be imposed against a party who refuses to obey an order for disclosure ordinarily is within the discretion of the trial court (see, Zletz v Wetanson,
Here, no showing of prejudice has been made by defendants. Further, although plaintiffs failure to comply with Supreme Court’s scheduling order is unjustified and apparently willful, it appears to have been based on a belief — however erroneous — that they were legally entitled to demand further depositions of the hospital prior to deposing the doctors rather than an intent to engáge in an “evasive, misleading and uncooperative course of cоnduct or strategy of delay that would justify the drastic penalty of dismissal” (Matter of Beauregard v Millwood-Beauregard,
Crew III, J.P., Mugglin and Rose, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted the cross motion of defendants John V. Ioia and Hudson Valley Orthopedic Center P.C. to dismiss the complaint against them; cross motion to preclude and plaintiff precluded from deposing Ioia granted; and, as so modified, affirmed.