## Facts

- An infant plaintiff was hospitalized at a medical center from late June to mid-October 1987.
- The infant allegedly sustained skin burns in areas where electrodes were placed during hospitalization.
- In 1997, the infant (by her mother) and the mother individually sued the hospital and a related medical college for medical malpractice.
- After joinder of issue, defendants demanded a bill of particulars; plaintiffs served a verified bill of particulars and pursued discovery.
- Defendants produced some records but did not produce nursing notes from the 1987 hospitalization.
- Plaintiffs asserted their ability to provide detailed particulars was limited by the absence of the nursing notes.
- Plaintiffs served a notice to admit regarding whether defendants possessed the nursing notes.
- Defendants responded that record-keeping policy suggested the hospital should have the notes, but they could not be located despite a search.

## Issues

1. Whether the trial court abused its discretion under CPLR 3042 and 3126 by refusing to strike portions of plaintiffs’ verified bill of particulars as insufficiently particular or overly broad.
2. Whether the trial court properly exercised its discretion under CPLR 3124 and 3126 by imposing conditional preclusion and related relief based on defendants’ failure to produce the nursing notes.

## Decision

- The appellate court affirmed the order in full.
- The denial of defendants’ motion to strike portions of the bill of particulars was upheld.
- The conditional preclusion order and permission for plaintiffs to present the missing-records issue to the jury (if the notes were not produced by a set date) were upheld as a proper exercise of discretion.

## Legal Principles

- Trial courts have broad discretion in supervising disclosure and in ruling on motions concerning bills of particulars and discovery sanctions; appellate review is deferential absent abuse of discretion.
- Under CPLR 3124 and 3126, courts may compel disclosure and impose sanctions for failure to comply with disclosure demands or orders, including preclusion of evidence.
- When a court sets a specific deadline for compelled disclosure, sanctions for noncompliance may be imposed to ensure future compliance and protect the truth-seeking function of litigation.
- Where critical medical records (such as nursing notes) are missing despite indications they should exist under institutional record-keeping policies, remedial measures may be warranted to address prejudice, including conditional preclusion and allowing the jury to hear about the absence of records.

## Conclusion

The appellate court upheld the trial court’s management of discovery by refusing to strike challenged allegations from the bill of particulars and by imposing conditional preclusion and related relief to address defendants’ failure to produce nursing notes central to the malpractice claims.


Felock v. Albany Med. Ctr. Hosp., 258 A.D.2d 772, 685 N.Y.S.2d 844 (N.Y. App. Div. 3d Dep’t 1999)