A nursing home's answer in a medical malpractice and wrongful death suit was properly struck because it failed for years to respond to discovery demands and court orders, a state appeals court has ruled.
Georgette Schiller, individually and as executrix of the estate of Bernice Schiller, sued Sunharbor Manor and related entities, for allegedly giving negligent care to Bernice Schiller that led to a leg infection, amputation and her death.
Nearly four years after bringing the 2011 suit, Schiller moved to strike defendants' answer. In 2015, Nassau County Supreme Court Justice Robert Bruno did so.
In reviewing and affirming Bruno's decision to strike the answer, the Appellate Division, Second Department, cited a trial court's discretion to impose a penalty under CPLR 3126.
Justices Ruth Balkin, Cheryl Chambers, Joseph Maltese and Colleen Duffy found that "defendants' repeated failures, over a period of years, to respond to the plaintiff's discovery demands, even after being directed to do so by multiple court orders, without adequate excuses, constitutes willful and contumacious conduct."
In their July 26 decision in Schiller v. Sunharbor Acquisition I, 5793/11, the justices also pointed to the defendants' failure to provide an explanation for their initial false statement in an April 2013 discovery response to Schiller.
Stephen Glasser, of counsel at Sullivan Papain Block McGrath & Cannavo in Manhattan, said Friday that "the Second Department is usually very reluctant to strike an answer, but the facts in this record were egregious."
Richard Fedrow, formerly an attorney at Ptashnik & Associates, represented the defendants in the appeal, and could not be reached for comment.