BG v PSH

Supreme Court, Richmond County

Decided on April 9, 2026

Index No. Redacted

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 002) numbered 25-28, 30 were read on Plaintiff's motion for an Order pursuant to CPLR § 2004 extending the time to complete Plaintiff's Examination Before Trial:

Plaintiff's Notice of Motion, Affirmation in Support, and annexed exhibits; Defendant's Affirmation in Opposition; Plaintiff's Reply Affirmation.

II. Findings of Fact

This action arises out of allegations asserted by Plaintiff, BG, against Defendant, PSH, M.D., sounding in, inter alia, assault, battery, negligence, intentional and negligent infliction of emotional distress, violations of the Penal Law, and violations of the New York State and City Human Rights Laws, arising from medical encounters alleged to have occurred on XX XX 2022, XX XX, 2023, and XX XX, 2024.

The procedural posture of this matter is well developed. Plaintiff commenced this action on March 3, 2025, by filing a Summons and Verified Complaint. (NY St Cts Filing [NYSCEF] Doc No. 1). Defendant thereafter moved pre-answer to dismiss the complaint pursuant to CPLR § 3211[a][5] and [7], asserting, inter alia, statute of limitations defenses and failure to state a cause of action. (NY St Cts Filing [NYSCEF] Doc Nos. 4-12). By Decision and Order dated August 14, 2025, this Court denied Defendant's motion, determining that dismissal was not warranted at that stage and that certain causes of action were sufficiently pleaded. (NY St Cts Filing [NYSCEF] Doc No. 13). Defendant thereafter interposed a Verified Answer denying the material allegations and asserting affirmative defenses. (NY St Cts Filing [NYSCEF] Doc No.16).

On October 8, 2025, this Court issued a Preliminary Conference Order directing that disclosure proceed and establishing deadlines, including that party depositions be conducted within sixty (60) days. (NY St Cts Filing [NYSCEF] Doc No. 21). Thereafter, on December 18, 2025, the Court issued a Short Form Order directing that Plaintiff's Examination Before Trial be completed on or before February 27, 2026, and that Defendant's deposition follow thereafter. (NY St Cts Filing [NYSCEF] Doc No. 24).

The record demonstrates that, following issuance of the December 18, 2025 Order, counsel for the parties engaged in efforts to schedule Plaintiff's deposition within the Court-imposed deadline. Multiple dates were proposed and discussed, and communications between counsel were ongoing. Plaintiff did not complete her deposition by the February 27, 2026 deadline.

Plaintiff now moves, prior to any sanction being imposed, for a limited extension of time pursuant to CPLR § 2004. Plaintiff contends that the inability to complete the deposition was the result of practical scheduling constraints, including Plaintiff's professional obligations, and not the product of willful or contumacious conduct.

Defendant opposes the motion, asserting that Plaintiff has failed to comply with multiple Court-ordered deadlines, has not provided a date certain for deposition, and has engaged in a pattern of delay and noncompliance which has prejudiced Defendant and frustrated discovery. Defendant further contends that Plaintiff's request constitutes an improper attempt to circumvent prior Orders of the Court and that the case should be marked off.

In reply, Plaintiff disputes Defendant's characterization of the record, asserts that counsel engaged in consistent and good-faith efforts to schedule the deposition, and represents that Plaintiff is now prepared to appear on the next date provided by Defendant within a defined extension period.

[*2]III. Conclusions of Law

CPLR § 2004 provides that "the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown." The statute vests broad discretionary authority in the trial court to regulate its calendar and supervise the orderly progress of litigation.

The Appellate Division, Second Department, has repeatedly held that the determination of whether to grant an extension pursuant to CPLR § 2004 rests within the sound discretion of the Court, and that such discretion should be guided by consideration of the length of delay, the reason for the delay, whether the moving party was in default prior to seeking relief, and whether prejudice has been demonstrated (see Kim & Bae, P.C. v Lee, 173 AD3d 990 [2d Dept 2019]; see also Garrison v Dick's Sporting Goods, Inc., 187 AD3d 1379 [3d Dept 2020]; Tewari v Tsoutsouras, 75 NY2d 1 [1989]).

Moreover, the Second Department has consistently reaffirmed that extensions are appropriate where the delay is neither willful nor contumacious and where the opposing party fails to demonstrate prejudice (see Bank of Am., N.A. v Cord, 214 AD3d 934 [2d Dept 2023]). The absence of prejudice is a significant factor militating in favor of discretionary enlargement.

Conversely, the drastic remedies of dismissal, preclusion, or striking of pleadings are reserved for situations in which a party's noncompliance with discovery obligations is shown to be willful, contumacious, or in bad faith (see Halikiopoulos v NY Hosp. Med. Ctr. of Queens, 284 AD2d 373 [2d Dept 2001]; Byam v City of New York, 68 AD3d 798 [2d Dept 2009]). The Court of Appeals has cautioned that persistent and unexplained disregard of court orders may warrant such severe relief, emphasizing that "if the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (see Kihl v Pfeffer, 94 NY2d 118 [1999]).

At the same time, the Appellate Division has recognized the strong public policy favoring the resolution of cases on the merits and has cautioned against the imposition of disproportionate sanctions where less drastic remedies are available (see Halikiopoulos v NY Hosp. Med. Ctr. of Queens, 284 AD2d 373 [2d Dept 2001]; Byam v City of New York, 68 AD3d 798 [2d Dept 2009]).

Applying these well-settled principles to the record before the Court, it is clear that Plaintiff failed to comply with the deadline set forth in the Court's December 18, 2025 Order directing completion of her deposition by February 27, 2026. The Court does not minimize the significance of compliance with its Orders, nor does it condone dilatory conduct.

However, the inquiry does not end with the existence of delay. The Court must determine whether such delay rises to the level of willful and contumacious conduct warranting denial of relief or the imposition of severe sanctions.

Here, the record does not support a finding that Plaintiff's conduct was willful, contumacious, or undertaken in bad faith. The submissions reflect that counsel engaged in ongoing communications, proposed deposition dates, and attempted to coordinate scheduling within the prescribed timeframe. The failure to complete the deposition appears to have resulted from scheduling constraints, including Plaintiff's asserted professional obligations, rather than a deliberate refusal to comply with the Court's directives.

This case is thus readily distinguishable from Kihl v Pfeffer (94 NY2d 118 [1999]), where the party wholly failed to respond to discovery demands and ignored court orders, and from cases in which repeated, unexplained defaults over extended periods justified the imposition of drastic [*3]relief (see Byam v City of New York, 68 AD3d 798 [2d Dept 2009]).

Further, while Defendant asserts prejudice, such assertions are largely conclusory. There has been no showing of concrete or particularized prejudice, such as the loss of evidence, unavailability of witnesses, or impairment of a scheduled trial date. Discovery remains ongoing, no Note of Issue has been filed, and no trial date has been set. Under such circumstances, the absence of demonstrated prejudice weighs in favor of granting a limited extension (see Bank of Am., N.A. v Cord, 214 AD3d 934 [2d Dept 2023]; Kim & Bae, P.C. v Lee, 173 AD3d 990 [2d Dept 2019]).

The Court is also mindful that Plaintiff now represents a willingness to appear for deposition on the next available date and seeks only a brief, defined extension. This representation, if honored, provides a concrete mechanism for curing the default and advancing the matter toward resolution.

Balancing the competing considerations, namely, the need to enforce compliance with court orders and the equally compelling policy favoring disposition on the merits, the Court finds that a limited and strictly conditioned extension is appropriate. Such relief preserves the integrity of the Court's scheduling directives while avoiding the disproportionate consequences urged by Defendant.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is hereby

ORDERED that Plaintiff's motion pursuant to CPLR § 2004 is granted to the limited extent that the deadline to complete Plaintiff's Examination Before Trial is extended; and it is further

ORDERED that Plaintiff shall appear for deposition on a date certain to be agreed upon by counsel within thirty (30) days of the date of this Decision and Order; and it is further

ORDERED that in the event the parties are unable to agree upon a date within five (5) days of the date of this Decision and Order, Defendant shall designate a date certain within the thirty (30) day period, upon which Plaintiff shall appear; and it is further

ORDERED that Plaintiff's failure to appear for deposition within the time prescribed herein, absent further Order of this Court, shall be deemed willful and may result in the imposition of appropriate sanctions, including but not limited to those authorized under CPLR § 3126; and it is further

ORDERED that Defendant's deposition shall be conducted within thirty (30) days following completion of Plaintiff's deposition; and it is further

ORDERED that all other provisions of the Preliminary Conference Order (NY St Cts Filing [NYSCEF] Doc No. 21) and the Short Form Order dated December 18, 2025 (NY St Cts Filing [NYSCEF] Doc No. 24) shall remain in full force and effect; and it is further

ORDERED that the relief not expressly granted herein is denied.

This constitutes the Decision and Order of the Court.

Dated: April 9, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT