Gibbs v. St. Barnabas Hospital

Ciparick, J. (dissenting).

As the majority notes, CPLR 3042 and 3126 confer broad discretion on trial courts to craft discovery sanctions. A court “may” issue a final or conditional order “as is just” if a party “willfully fails to provide particulars which the court finds ought to have been provided” (CPLR 3042 [d]; see also CPLR 3126).

Neither Supreme Court nor the Appellate Division found that the behavior of plaintiffs counsel was sufficiently egregious to merit the harsh sanction of preclusion. To the contrary, Supreme Court stated that the conduct “was dilatory but not intentioned and . .…