Defendant moves for an Order granting him summary judgment on various grounds including a claim that the complaint fails to state a cause of action pursuant to C.P.L.R. § 3211(a)(7). In the alternative, defendant moves for sanctions pursuant to C.P.L.R. § 3042 and § 3126 on the grounds that the plaintiff has failed to respond to defendant's demand for a bill of particulars and comply with plaintiff's discovery demands. Defendant's motion is supported by the affidavit of Thomas Gambino, Esq., dated June 10, 2016, together with Exhibits A through G. Plaintiff has filed opposition to the motion supported by the affirmation of Amalia Makroglou, Esq., dated June 30, 2016, together with Exhibits A-F. Defendant has filed the reply affidavit of Thomas M. Gambino, Esq., dated July 21, 2016, in further support of the motion and in reply to plaintiff's opposition. Now, having read defendant's motion, the opposition, and the reply together with the accompanying exhibits, and all the papers filed herein and before, and due deliberation having been held thereon, the Court determines the motion as follows:

On December 9, 2015, plaintiff served the summons and complaint for the instant action upon defendant seeking to recover $13,952.00. Said sum represents an unpaid medical bill for surgical services Dr. Alden rendered at Vassar Brother's Hospital when Dr. Alden performed an [*2]emergency appendectomy on defendant's son on June 25, 2013.^[FN1] Defendant filed his answer together with a demand for a bill of particulars and demand for discovery on December 23, 2015. On March 16, 2016, plaintiff filed a note of issue and defendant moved to strike same, on the grounds that discovery was incomplete. On May 2, 2016, this Court granted the motion to strike the note of issue and issued an Order directing plaintiff to respond to defendant's demand for a bill of particulars and discovery demands on or before May 24, 2016, or the Court would entertain motions for sanctions from the parties. On May 6, 2016, defendant provided plaintiff with voluntary disclosure despite having never been served with any discovery demands.

Defendant seeks to strike plaintiff's complaint on the grounds that it is unverified, arguing that he disputes the debt claimed and verification was demanded, but never provided.^[FN2] The general rule of law is that when a pleading is served "without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do." C.P.L.R. § 3022. The failure to verify or sign the complaint affects a substantial right of the defendant in that plaintiff's claims cannot be challenged as false, which imposes prejudice upon the defendant who seeks to challenge these allegations.Jack Vogel Associates v. Color Edge, Inc., 2008 NY Slip Op. 31509(U) (New York County 2008).A review of the complaint reveals that, indeed, it is not verified. However, defendant has failed to provide evidence to support his claim that he met the constraints of C.P.L.R. § 3022 in that he demanded a verified pleading in writing and that he acted with due diligence. Therefore, based upon these deficiencies, defendant's motion to strike the complaint is denied.

Defendant seeks to have the matter dismissed on the grounds that the plaintiff has failed to join all necessary parties to the action, to wit: Vassar Brothers Medical Center, Blue Cross/Blue Shield and/or GHI. Dismissal of an action for nonjoinder is a last resort. Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801,821 (2003). SIEGEL, NY PRACTICE , 5th ed., § 133. The mandatory joinder rules are meant to avoid prejudice, multiple litigation, and inconsistent judgments that may result for failure to join necessary parties to an action. Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801,820 (2003). Generally, plaintiff decides who will be joined parties to an action, unless the law insists that certain persons be joined. (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, C.P.L.R. C1001:1) Here, there is no citation that defendant relies upon in arguing that Vassar Brothers Medical Center, Blue Cross/Blue Shield and/or GHI would fall under the [*3]category of indispensable parties.

C.P.L.R. § 1001(a) provides that necessary parties to an action include those, "who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action." A necessary party is one who nonjoinder would jeopardize the outcome in one of two ways: 1) complete relief cannot be accorded the existing parties to the action; or 2) the absentee may be inequitably affected by the judgment. (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, C.P.L.R. C1001:1)

Whether these parties are indispensible cannot be fully examined in the absence of facts or having heard the theory of the plaintiff's case. Based upon what is before this Court, however, a judgment in either plaintiff's or defendant's favor would not inequitably affect these other parties, as the insurance companies paid Vassar Brothers Medical Center and the insurance companies are simply not indispensable parties to the instant claim. Similarly, complete relief can be afforded to the existing plaintiff and defendant under the current claim, because evidence at trial will either demonstrate that defendant is liable to plaintiff for medical services rendered as a non-participating health provider, or not.

Defendant is the movant here, thereby bearing the initial burden to show a prima facie case of entitlement to judgment by demonstrating the absence of any material issues of fact. Alverez v. Prospect Hospital et al., 68 NY2d 320 (1986); see North Fork Bank Corp. v. Graphic Forms Assoc., et al., 36 AD3d 676 (2d Dept. 2007). Defendant has failed to meet his burden of proof. It is well settled that "the drastic remedy of summary judgment is appropriate only where a thorough examination of the merits clearly demonstrates the absence of any triable issue of fact." Vamattam v. Thomas, 205 AD2d 615 (2d Dept. 1994) citing Piccirillo v. Piccirillo, 156 AD2d 748 (2d Dept. 1989). The party seeking summary judgment must sufficiently establish the cause of action (or defense) and must tender evidentiary proof in admissible form to warrant the court, as a matter of law, to direct judgment in its favor. Bush v. St. Clare's Hospital, 82 NY2d 738, 739 (1993) citing Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

Here, defendant has moved for summary judgment on the grounds that plaintiff's complaint fails to set forth a cause of action. The rule in determining a motion to dismiss for failure to state a cause of action is whether the allegations in the complaint, taken as true, state any cause of action. Andre Strishak & Assoc., P.C. v. Hewlett Packard Co., 300 AD2d 608 (2d Dept. 2002).The court must accept the facts alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference in determining whether the facts as alleged fit within any cognizable legal theory, for if it does, then the motion must fail. Collins v. Telcoa Intern. Corp., 283 AD2d 128 (2d Dept. 2001). If the complaint fits within a cognizable legal theory, and the motion for summary judgment is unaccompanied by affidavits or other extrinsic proof, then the motion fails. (Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, C.P.L.R. C3211:24)

Here, plaintiff's complaint seeks to recover an unpaid debt for medical expenses incurred as a result of the defendant's minor child's appendectomy which was performed by the plaintiff. While defendant argues that plaintiff has failed to provide documentation to support the sums plaintiff claims are due from defendant, despite due demand, this may constitute grounds for [*4]discovery sanctions, but does not entitle defendant to summary judgment for failure to state a cause of action. Therefore, accepting the facts alleged in the complaint as true and according plaintiff the benefit of every possible favorable inference, this Court finds that the facts fit within a cognizable legal theory, and that defendant's motion for summary judgment must be denied.

Plaintiff's failure to comply with discovery demands and this Court's two (2) prior orders subject him to sanctions. Plaintiff has failed to respond to defendant's demand for a bill of particulars and has failed comply with any discovery demands despite having been served with same on or about December 23, 2015, and despite two (2) Court Orders [dated March 7, 2016 and May 2, 2016] directing that discovery be completed.

The failure to respond or comply with a demand for a bill of particulars is governed by C.P.L.R. § 3042, and the party "seeking the bill of particulars may move to compel compliance, or, if such failure is willful, for the imposition of penalties," which could include a final or conditional order of preclusion of evidence. C.P.L.R. § 3042(c), (d). Plaintiff does not dispute that he has failed to answer the demand for a bill of particulars, but claims that he needs a HIPPA release form signed by defendant to gather the information necessary to comply with defendant's demands. Notwithstanding same, plaintiff has not tried to comply with any of defendant's other discovery demands, for which a HIPPA release is not required.

Defendant's demand for a bill of particulars is just one and one-half pages long [Gambino affirmation, dated June 10, 2016, Exhibit C]. In short, it seeks: the date, time, and place the parties entered into a contract; whether it was in writing; the manner by which the plaintiff performed all conditions required pursuant to the contract; how defendant breached the contract; the amount paid by defendant; the dates paid; the invoices forwarded by defendant to plaintiff; and the professional services rendered by plaintiff to defendant including date, time and location. Plaintiff has also not responded to defendant's discovery demands. Plaintiff does not dispute that defendant has made discovery demands, but argues instead that numerous statements were sent to defendant regarding the debt due. Amalia Makroglou, Esq. Affirmation, dated June 30, 2016, ¶ 10. As well, plaintiff argues summarily that he needs a HIPPA release form to comply with the discovery demands as well as the demand for a bill of particulars.

Yet, plaintiff fails to detail in his opposition papers why he needs a HIPPA release form to answer basic questions, or how without same, he cannot respond to anything. C.P.L.R. § 3042(a) clearly requires that the response to a demand for a bill of particulars cover everything and that objecting to one or more items is not an excuse for withholding an answer to the others, nor is it even an excuse for delaying a response. In particular, the statute provides as follows:

"[t]he assertion of an objection to one or more of the items in the demand shall not relieve the party on whom the demand is made from the obligation to respond in full within thirty days of service of the demand to the items of the demand to which no objection has been made." C.P.L.R. § 3042(a).

Moreover, if a party has no knowledge of a particular item at the time a demand is served, then the party should set forth his lack of knowledge under oath. Waldman v. Allen, 87 AD2d [*5]817 (2d Dept. 1982). A party who willfully fails to provide disclosure may seek relief under sanctions listed in C.P.L.R. § 3126, which ranges from an order establishing the relevant facts against the recalcitrant party, to preclusion, to finding a party in default. Once the party obtains the knowledge needed for particularization, the procedure is to serve an amended or supplemental bill. Here, plaintiff has not responded to anything within the 30-day period, and there has been continued silence for nearly nine (9) months - in spite of two (2) orders from this Court to comply. The Preliminary Conference Stipulation and Order, dated March 7, 2016, directed that a demand for a bill of particulars be served on or before March 31, 2016, with responses served on or before May 6, 2016. All discovery was to be completed by May 24, 2016. Likewise, the subsequent Order dated May 2, 2016, provided for same, warning that it would entertain sanctions if discovery was not met. Defendant contends, in the instant motion, that plaintiff has not only failed to respond to its demand for a bill of particulars, but that plaintiff has failed to provide any disclosure to him. Plaintiff has not sought an extension of time to comply with disclosure, and defendant now seeks preclusion or an order striking the pleadings. This Court finds plaintiff's actions in refusing to respond to the demand for a bill of particulars to be willful, and thus grants defendant's request for sanctions pursuant to C.P.L.R. § 3042(d), as set forth below.

THEREFORE, based upon all of the foregoing, it is now

ORDERED, that defendant's motion to strike the complaint for failure to provide a verification is DENIED; and it is further

ORDERED, that defendant's motion for summary judgment is DENIED; and it is further

ORDERED, that defendant's motion to dismiss for failure to join the necessary parties is DENIED; and it is further

ORDERED, that the defendant's motion for sanctions for failure to answer the demand for a bill of particulars is GRANTED to the extent that plaintiff will be precluded from offering evidence at trial regarding all matters of which particulars were not given pursuant to defendant's timely written demands; and it is further

ORDERED, that defendant's motion for sanctions for failure to comply with defendant's discovery demands is GRANTED CONDITIONALLY, to the extent that plaintiff will be precluded from offering any evidence at trial within seven (7) days from the date of this order for anything sought in the discovery demand that plaintiff has failed to turn over and has in his possession regarding plaintiff's treatment of defendant's son ^[FN3] ; and it is further

ORDERED, that if plaintiff cannot comply with defendant's discovery demand due to lack of having a HIPPA authorization, then plaintiff shall provide this Court with an affidavit from a witness with personal knowledge averring same; and it is further

ORDERED, that the plaintiff shall pay defendant $500.00 in attorney's fees to defray the defendant's costs in bringing the instant motion.