Chaisson v. North Shore University Hospital ( 1992 )

In an action to recover damages for wrongful death and personal injuries arising from medical malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Levitt, J.), entered April 23, 1990, as granted the motion of the defendant North Shore University Hospital for renewal, and, upon renewal, vacated a prior order of the same court, dated January 25, 1988, which granted the plaintiffs motion to strike the answer of the defendant North Shore University Hospital, and the defendant North Shore University Hospital cross-appeals from so much of the same order as imposed sanctions against it by permitting negative inferences to be drawn against it regarding its failure to produce all maintenance and repair records and precluded it from raising defenses at the trial pertaining to the negative inferences.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

While the defendant North Shore University Hospital (hereinafter the hospital) perhaps did not diligently pursue all possible leads in its search for documents in compliance with court-ordered disclosure, under the circumstances herein, i.e., the eventual production by the hospital of various documents in compliance with the order, it was not an improvident exercise of the court’s discretion to grant renewal, and upon renewal, vacate its previous order dated January 25, 1988, striking the hospital’s answer, which was based upon a complete failure to comply with court-ordered discovery (see generally, Weiss v Flushing Natl. Bank, 176 AD2d 797, 798; Matter of Kennedy v Coughlin, 172 AD2d 666).

Contrary to the plaintiffs contention, the court’s substitution of a lesser penalty, upon the hospital’s incomplete compliance with the discovery order, was a proper exercise of its discretion (cf., Sawh v Bridges, 120 AD2d 74, 77-78). Accordingly, we decline to reinstate the order striking the hospital’s answer.

We have examined the parties’ remaining contentions and find them to be without merit. Sullivan, J. P., Balletta, Eiber and Miller, JJ., concur.