Rob Hainer/Shutterstock.com

A medical malpractice action in which the plaintiff failed to narrow down deposition demands despite court orders to do so was wrongly dismissed, a state appeals court has ruled in reinstating the suit, because there was not a "clear showing" that the failure was "willful and contumacious."

Such a clear showing "did not occur here," an Appellate Division, Second Department panel wrote simply in the terse opinion, without additional detail.

Still, the panel choose to simultaneously penalize the plaintiff, Roumaryi Rezk—and his attorneys at Sacco & Fillas—for what it said was "the lengthy pendency of this action, the dispute over the plaintiff's overbroad demands for disclosure"—meaning, requested depositions in the lawsuit—"and his refusal to tailor those demands in accordance with prior orders of the [lower court]."

The specific penalty in the now-revived lawsuit is that Rezk and his lawyers must forfeit "further disclosure" in the action, the panel's unanimous decision said. What that effectively means, according to a Sacco & Fillas lawyer interviewed on Friday, is that Rezk's side will no longer be able to depose defendants at New York Presbyterian Hospital/New York Weill Cornell Center, including key physicians and staff who treated Rezk during a 2013 emergency room visit.

The attorney, associate Simon Landsberg, who said that he had handled the appeal, also noted that no New York Presbyterian Hospital/New York Weill Cornell Center physician or staff had yet been deposed, and thus none will be.

The lawsuit, launched in 2014, centers on Rezk's allegations that the hospital E.R. failed to provide him with adequate care when he showed up there with glass in his right hand after falling from a bike, according to Landsberg.

Rezk was in his late teens at the time, and, according to Landsberg, the suit claims the E.R. did not provide him with access to a proper specialist for the hand injury, and it failed to remove certain glass from the hand.

As a result of what the suit alleged was a failure to provide adequate care, Rezk has lost some use of the hand and has hand disfigurement, the lawyer said.

Daniel Ratner, a Heidell, Pittoni, Murphy & Bach partner, represented the hospital center in the appeal, according to the Second Department's opinion. He could not be reached for comment Friday.

The panel's decision reverses a March 2018 decision by Queens County Supreme Court Justice Peter J. O'Donoghue that had granted the hospital center's dismissal motion pursuant to state statute CPLR 3216, as well as, "in effect," pursuant to state statute, CPLR 3126, the panel wrote.

According to the panel, the hospital center had argued in the lower court that Rezk's complaint should be dismissed, in part, because the plaintiff had allegedly "failed to narrow his demands to depose witnesses affiliated with the defendant in support of his case, despite stipulations and court orders directing him to do so."

But panel justices Alan Scheinkman, Leonard Austin, Jeffrey Cohen and Sylvia Hinds-Radix wrote that under CPLR 3126(3), the "remedy of dismissal is 'only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious," quoting Rosenblatt v Franklin Hosp. Med. Ctr., 165 AD3d 862, 862.

And, said the justices simply, that "did not occur here."

But the justices then wrote in their opinion Wednesday that "the lengthy pendency of this action, the dispute over the plaintiff's overbroad demands for disclosure, and his refusal to tailor those demands in accordance with prior orders of the court, compels the conclusion that further disclosure has been forfeited."

Landsberg said during the phone interview Friday that "we were very happy and satisfied with the court's decision [to reverse dismissal of the lawsuit], and we're ready to move forward and try this case on its merits."

But in regard to the discovery penalty, he said that "it is disappointing that the plaintiff is being penalized for seeking what the court deemed to be overboard demands of discovery," when, according to what Landsberg claimed, the defendants didn't produce certain deposition witnesses.