Opinion
March 17, 1987
Appeal from the Supreme Court, Bronx County (Irma Vidal Santaella, J.).
We affirm the order of Special Term insofar as it precludes the defendant hospital from introducing into evidence the documents which it failed to produce despite the plaintiffs' repeated demands for discovery of said documents. Defendant Montefiore and its attorneys have been callously contumacious by withholding the requested hospital records which are material and necessary to plaintiffs' prosecution of this medical malpractice claim. Since plaintiffs first served their demand in July 1983, defendant hospital has been recalcitrant in its refusal to turn over all of the records, necessitating plaintiffs to make no less than three separate motions. In view of defendant hospital's willful failure to comply with the resulting court orders directing discovery, Special Term was justified in exercising its discretion and precluding defendant from offering these documents into evidence pursuant to CPLR 3126 (2). (See, Lisec v. Abrams, 112 A.D.2d 145; Olshansky v. Ravera, 107 A.D.2d 740.)
However, we modify the order to delete from it the language which purportedly permits defendant hospital to introduce oral testimony "which opposes or contradicts plaintiff's [sic] allegations in this lawsuit". This phrase is ambiguously worded and is possible of a construction which would completely eviscerate the plain meaning of the court's order, to wit, the unconditional preclusion of defendant hospital from introducing any evidence regarding the records it failed to produce, in accordance with CPLR 3126.
Plaintiffs, on the other hand, having been frustrated from obtaining the records from the hospital, shall be permitted to present any relevant evidence they may have to establish the nature and extent of the treatment covered by the missing documents.
Concur — Sandler, J.P., Carro, Kassal, Ellerin and Wallach, JJ.