Khoshayev v. Edelstein
Attorneys and Parties
Brief Summary
Medical malpractice action involving discovery noncompliance with authorizations and the appropriate sanction under New York disclosure rules.
The Supreme Court, Kings County, denied the defendant’s motion to dismiss or sanction plaintiffs for failing to provide discovery authorizations ordered on February 14, 2023.
The Appellate Division reversed the denial and imposed a conditional preclusion sanction rather than dismissal.
Under CPLR 3126 [authorizes courts to impose sanctions, including dismissal, for failure to obey disclosure orders], unconditional dismissal is a draconian remedy reserved for willful or contumacious conduct; although plaintiffs failed to provide ordered authorizations, the record did not warrant dismissal. There was also no basis for dismissal under 22 NYCRR 202.27 [uniform rule permitting dismissal or other relief for failure to appear at a scheduled call or trial]. The appropriate remedy was conditional preclusion to compel compliance.
Background
Plaintiffs commenced a medical malpractice action in August 2020. The court (Judge Rachel E. Freier) issued a February 14, 2023 order directing plaintiffs to furnish certain authorizations. Defendant moved under CPLR 3126 [authorizes courts to impose sanctions, including dismissal, for failure to obey disclosure orders] and 22 NYCRR 202.27 [uniform rule permitting dismissal or other relief for failure to appear at a scheduled call or trial] to dismiss the complaint for plaintiffs’ failure to comply, including not providing the ordered authorizations. The Supreme Court denied the motion on March 6, 2024, and defendant appealed.
Lower Court Decision
Denied defendant’s motion to dismiss or sanction under CPLR 3126 and 22 NYCRR 202.27 despite plaintiffs’ failure to provide the authorizations required by the February 14, 2023 order.
Appellate Division Reversal
Reversed with costs. The court held there was no dismissal order or basis under 22 NYCRR 202.27 but determined sanctions were warranted under CPLR 3126. It granted conditional preclusion: unless plaintiffs provide all outstanding authorizations identified in the February 14, 2023 order within 60 days of service of the appellate decision and order, they are precluded from offering at trial or using in any dispositive motion any material subject to those authorizations; otherwise, the request for dismissal is denied.
Legal Significance
Reaffirms that while New York courts have broad discretion under CPLR 3126 to sanction discovery violations, unconditional dismissal is disfavored absent willful or contumacious noncompliance, and lesser sanctions—such as conditional preclusion—should be used to secure compliance. Also clarifies that 22 NYCRR 202.27 is inapplicable absent a relevant nonappearance-based order.
In discovery disputes over medical authorizations, courts will prefer conditional preclusion to compel compliance rather than dismissal unless there is clear, willful noncompliance; parties should expect a compliance window and targeted sanctions under CPLR 3126.