Wilson v. Brunswick Hospital

In an action to recover damages for medical malpractice, the defendants Bernard Nash, Steven Samuels, Peck Po Hsu, Joseph Pottanat, Norman Cohen, George Bures, Arthur Roseman, Richard Gordon, and Leonard Kleinman appeal from an order of the Supreme Court, Suffolk County (Lama, J.), entered August 23, 1991, which denied their motions to dismiss the complaint insofar as asserted against them for failure to comply with court-ordered disclosure. Ordered that the order is reversed, with one bill of costs to the appellants appearing separately and filing separate briefs, as a matter of discretion in the interest of justice, the motions are granted, and the complaint is dismissed insofar as asserted against the appellants. Since the plaintiffs failed to comply with two court orders compelling disclosure, and failed to respond to the appellants’ motions to dismiss the complaint for such failures, we find that the plaintiffs’ conduct to be willful and contumacious. Accordingly, the Supreme Court improvidently exercised its discretion in failing to dismiss the complaint insofar as asserted against the appellants (see, Nudelman v New York City Tr. Auth., 172 AD2d 503; Pietrowski v City of New York, 166 AD2d 423; Tschernina v Embanque Corp., 161 AD2d 585, 586-587; Rubin v Pan Am. World Airways, 128 AD2d 765). 497 Bracken, J. P., Balletta, Eiber, O’Brien and Pizzuto, JJ., concur.