On August 3, 2022, the Second Department issued a decision in Cooper v. Mt. Sinai Hosp., 2022 NY Slip Op. 04787, holding that a court erred in dismissing a complaint, explaining:
Initially, the defendant and the Supreme Court inappropriately relied upon the plaintiff’s general delay in prosecuting the action after issuance of the final pre-note order. The defendant’s motion was made pursuant to CPLR 3126, pertaining to failures to disclose, not pursuant to CPLR 3216(a), which relates to neglect to prosecute. Significantly, the courts have no authority to dismiss an action for failure to prosecute, whether on the ground of general delay, or for failure to serve and file a note of issue unless there has first been served a 90-day notice. Thus, the defendant’s and the court’s reliance upon the plaintiff’s delay in prosecuting the action when determining that branch of the defendant’s motion which was pursuant to CPLR 3126 improperly operated to circumvent the 90-day demand requirement of CPLR 3216(b)(3).
In the order directing dismissal, the Supreme Court also improperly referenced the plaintiff’s failure to move to be relieved of the final pre-note order. The final pre-note order was not a conditional order of dismissal, and thus, the plaintiff was not required to move to be relieved from it.
Pursuant to CPLR 3126(3), if a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed the court may make such orders with regard to the failure or refusal as are just, including one dismissing the action. However, as public policy strongly favors the resolution of actions on the merits whenever possible, the striking of a party’s pleading is a drastic remedy which is warranted only where there has been a clear showing that the failure to comply with discovery is willful and contumacious.
Here, although the defendant contends otherwise, the plaintiff complied with all of its discovery demands, except for scheduling his deposition. For the defendant’s part, while it advised the plaintiff that no OCT scan had been performed by it on a certain date, there is no evidence that, before making its motion to dismiss, it produced OCT images from a date on which such testing had been performed. Under the circumstances, the defendant failed to make a clear showing of willful and contumacious conduct on the plaintiff’s part so as to warrant the drastic sanction of dismissal. Accordingly, that branch of the defendant’s motion which was to dismiss the complaint should have been denied.
(Internal quotations and citations omitted).