Opinion
2002-04645
Submitted April 29, 2003.
August 25, 2003.
In an action to recover damages for medical malpractice, etc., (1) the defendants Westchester County Medical Center, n/k/a Westchester County Health Care Corporation, and the County of Westchester appeal, as limited by the brief, from so much of an order of the Supreme Court, Westchester County, entered April 18, 2002, as (a) granted that branch of the plaintiffs' motion which was to strike their answer pursuant to CPLR 3126 unless they produced certain witnesses for examinations before trial, complied with certain discovery demands, and paid $1,500 as an attorney's fee to the plaintiffs by specified dates, and (b) granted that branch of the plaintiff's motion which was for leave to depose nonparty Dr. Abdo, and (2) the defendants Westchester County Medical Center, n/k/a Westchester County Health Care Corporation, the County of Westchester, and nonparty witness Carey Goltzman appeal, as limited by the brief, from so much of the same order as (a), in effect, upon reargument, adhered to a prior determination of the same court directing the further examination of Carey Goltzman, and (b) denied that branch of their motion which was for a protective order preventing that further examination.
Kanterman Taub, P.C., New York, N.Y. (Louis J. Manger and Karen L. Wagner of counsel), for appellants and nonparty appellant.
Marino D'Orazio, Kingston, N.Y., for respondents.
Before: DAVID S. RITTER, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the appeal from so much of the order as, in effect, upon reargument, adhered to a prior determination of the same court directing the further examination of Carey Goltzman, and as denied that branch of the motion of the defendants Westchester County Medical Center, n/k/a Westchester County Health Care Corporation, the County of Westchester, and nonparty witness Carey Goltzman which was for a protective order preventing the further examination before trial of Carey Goltzman is dismissed, as no appeal lies as of right from those provisions of the order and leave to appeal has not been sought or granted; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
Those provisions of the order appealed from which adhered to a prior determination directing a further examination of the nonparty witness Carey Goltzman and denied that branch of the appellants' motion which was for a protective order preventing the further examination before trial of Carey Goltzman are not appealable as a matter of right, since they are in the nature of an order on an application to review objections raised at an examination before trial ( see Smith v. Konica Bus. Machs., USA, 232 A.D.2d 398; Stoller v. Moo Young Jun, 118 A.D.2d 637; Miracolo v. Daimler-Benz, 141 A.D.2d 513; Sainz v. New York City Health Hosps. Corp., 106 A.D.2d 500). Leave to appeal has not been sought or granted. Accordingly, the appeal from those portions of the order must be dismissed.
The nature and the degree of the penalty to be imposed pursuant to CPLR 3126 for a party's failure to disclose is within the sound discretion of the trial court ( see Lavi v. Lavi, 256 A.D.2d 602; Kubacka v. Town of N. Hempstead, 240 A.D.2d 374). In this case, the failure of the defendants Westchester County Medical Center, n/k/a Westchester County Health Care Corporation and the County of Westchester (hereinafter collectively Westchester) to comply with orders directing disclosure and the inadequate excuses offered for failure to comply demonstrated a willful and contumacious intent to not provide disclosure. Accordingly, the Supreme Court providently exercised its discretion in conditionally striking Westchester's answer ( see Porreco v. Selway, 225 A.D.2d 752). Moreover, under the circumstances of this case, the award of an attorney's fee to the plaintiffs was appropriate ( see Richard's Home Ctr. Lbr. v. Kownacki, 247 A.D.2d 371).
Westchester's remaining contentions either are unpreserved for appellate review or without merit.
We decline to award the plaintiffs a sanction for a frivolous appeal ( see 22 NYCRR 130-1.1; Enright v. Vasile, 205 A.D.2d 732).
RITTER, J.P., SMITH, GOLDSTEIN and H. MILLER, JJ., concur.