In Gibbs v. St. Barnabas, after repeated failures to comply with discovery requests and deadlines, the plaintiff failed to satisfy a court order directing him to supply a supplemental bill of particulars within 30 days. The court then afforded plaintiff a final opportunity to comply by conditionally granting the defendant's motion to preclude, giving plaintiff 45 days to serve the supplemental bill. The plaintiff failed to comply leading the defendant to move to enforce the conditional order of preclusion. The court did not order preclusion, but directed the plaintiff to pay $500 for his delay.
The Appellate Division, with one Justice dissenting, affirmed. The majority concluded that the trial court did not abuse its discretion in declining to enforce the conditional preclusion order. The dissenter would have enforced the order and granted the defendant summary judgment, reasoning that the trial court erred in relieving plaintiff of his default without requiring him to demonstrate a reasonable excuse and a meritorious claim.
The Court of Appeals reversed holding that to obtain relief from a conditional order of preclusion, "the defaulting party must demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense. In cases involving a medical malpractice cause of action, 'expert medical opinion evidence is required to demonstrate merit' under the second requirement" (citations omitted). In the Gibbs case, however, the plaintiff failed to provide an affidavit from a medical expert establishing the merits of his claim, requiring enforcement of the preclusion order.
The Court of Appeals also held that a defendant does not have to prove that the failure to provide discovery was willful. Where the Court enters a conditional order of preclusion, "'the court relieves itself of the unrewarding inquiry into whether a party's resistance was wilful'" (Siegel, NY Prac § 367, at 608 [4th ed]).