The Appellate Division, Second Department, at 45 Monroe Place, Brooklyn
The Appellate Division, Second Department, at 45 Monroe Place, Brooklyn (NYLJ/Rick Kopstein)

Striking a defendant’s answers in addition to monetary sanctions is warranted for failures to comply with discovery demands in a medical malpractice case, a divided appellate panel ruled Wednesday.

The financial sanctions were issued in April 2014, when Brooklyn Supreme Court Justice Laura Jacobson ordered Martin Clearwater & Bell and its clients in the malpractice case, as well as NewYork-Presbyterian/Columbia University Medical Center and three medical staffers, to pay $10,000. She issued an additional $5,000 sanction to the firm.

An unnamed Martin Clearwater attorney failed to disclose the name of a surgical booker working for the hospital in September 2007, the month that plaintiff Andre Wright was allegedly placed under general anesthesia for eye surgery and, as a result, suffered a stroke.

The attorney also repeatedly served deficient affidavits, Jacobson said, and misreported another surgical booker’s employment status—lapses the judge found “inexcusable and could only have been designed to conceal evidence and delay these proceedings.”

A 3-1 panel of the Appellate Division, Second Department, said monetary sanctions weren’t enough: the “contumacious” conduct of the defendants and their counsel warranted striking their answers.

Justices L. Priscilla Hall, Leonard Austin and Betsy Barros were the majority in Lucas v. Stam, 27364/08. In dissent, Justice Sheri Roman wrote that striking the answers was a “drastic” sanction.

Brett Nomberg, a partner at Brand Brand Nomberg & Rosenbaum, represented the plaintiffs. He said all but one of the defendants have agreed to settle and that claims against defendant Lawrence Stam, an internist at the hospital, are set for trial in March. Shavonn Lucas is the name plaintiff as administrator of Wright’s estate.

Martin Clearwater partners Barbara Goldberg and John L.A. Lyddane appeared for the defendants; neither responded to messages requesting comment.

Striking a defendant’s answers in addition to monetary sanctions is warranted for failures to comply with discovery demands in a medical malpractice case, a divided appellate panel ruled Wednesday.

The financial sanctions were issued in April 2014, when Brooklyn Supreme Court Justice Laura Jacobson ordered Martin Clearwater & Bell and its clients in the malpractice case, as well as NewYork-Presbyterian/Columbia University Medical Center and three medical staffers, to pay $10,000. She issued an additional $5,000 sanction to the firm.

An unnamed Martin Clearwater attorney failed to disclose the name of a surgical booker working for the hospital in September 2007, the month that plaintiff Andre Wright was allegedly placed under general anesthesia for eye surgery and, as a result, suffered a stroke.

The attorney also repeatedly served deficient affidavits, Jacobson said, and misreported another surgical booker’s employment status—lapses the judge found “inexcusable and could only have been designed to conceal evidence and delay these proceedings.”

A 3-1 panel of the Appellate Division, Second Department, said monetary sanctions weren’t enough: the “contumacious” conduct of the defendants and their counsel warranted striking their answers.

Justices L. Priscilla Hall, Leonard Austin and Betsy Barros were the majority in Lucas v. Stam, 27364/08. In dissent, Justice Sheri Roman wrote that striking the answers was a “drastic” sanction.

Brett Nomberg, a partner at Brand Brand Nomberg & Rosenbaum, represented the plaintiffs. He said all but one of the defendants have agreed to settle and that claims against defendant Lawrence Stam, an internist at the hospital, are set for trial in March. Shavonn Lucas is the name plaintiff as administrator of Wright’s estate.

Martin Clearwater partners Barbara Goldberg and John L.A. Lyddane appeared for the defendants; neither responded to messages requesting comment.