CPLR 3126 Dismissal Is Warranted When a Court-Ordered Medical “Affidavit of Merit” Is Conclusory, Omits Causation/Standard of Care, and Lacks Foundation for Cross-Specialty Opinions

1. Introduction

Romanova v Glatzer arises from a 2016 medical malpractice and lack of informed consent action alleging a failure to timely diagnose acute myeloid leukemia. The defendants included (i) Clifford Glatzer, M.D., Coney Island Hospital, and New York City Health and Hospitals Corporation (collectively, the “NYC defendants”), and (ii) Alex Solovey (a provider implicated in connection with dental care).

After years of inactivity, the Supreme Court denied earlier motions to dismiss for failure to prosecute and directed discovery to be completed. By November 2022, however, “all discovery remained outstanding.” The court issued an order requiring the plaintiff to produce, within a specified time frame, an affidavit/affirmation from a medical expert opining on the merits, warning that failure could result in dismissal. The plaintiff served an affirmation from a medical oncologist (the “Rietschel affirmation”), prompting renewed motions under CPLR 3126 to dismiss for noncompliance.

The central issues on appeal were whether the plaintiff’s discovery failures justified the “drastic remedy” of dismissal under CPLR 3126, and whether the submitted expert affirmation satisfied the court’s order—particularly as to (a) articulation of standard of care, (b) nonconclusory linkage to medical records and causation, and (c) competence/foundation to opine outside the expert’s specialty (dentistry).

2. Summary of the Opinion

The Second Department affirmed the dismissal of the complaint under CPLR 3126. It held that the plaintiff’s prolonged and repeated failure to comply with discovery obligations—without a reasonable excuse—supported an inference of willful and contumacious conduct, warranting dismissal.

The court further held that the plaintiff did not comply with the November 2022 order because the Rietschel affirmation failed to demonstrate a meritorious medical malpractice claim. The affirmation was deemed largely speculative and conclusory, did not adequately tie alleged “obvious leukemia” to record-based symptomatology, did not set forth the applicable standard of care, and did not explain proximate causation.

As to defendant Solovey, the court additionally found that the oncologist’s affirmation lacked probative value because it did not lay a foundation showing competence to opine on the standard of care for general dentistry or related pre-operative dental testing. The Supreme Court also properly declined to consider a different expert affirmation submitted for the first time in opposition.

3. Analysis

3.1 Precedents Cited

The opinion is built on two doctrinal tracks: (1) CPLR 3126 dismissal standards for willful noncompliance; and (2) requirements for a post-delay “affidavit of merit” in medical malpractice cases, including expert competence and nonconclusory proof of departure and causation.

A. CPLR 3126: Dismissal for willful and contumacious noncompliance

• Winters v City of New York — Quoted for CPLR 3126 (3) authority to dismiss when a party refuses to obey disclosure orders or willfully fails to disclose required information; frames dismissal as a permissible sanction.
• Cooper v Mt. Sinai Hosp. — Cited in tandem with Winters, reinforcing that dismissal is available under CPLR 3126 for serious disclosure failures.
• De Leo v State-Whitehall Co. and Harris v City of New York — Provide the “clear showing” requirement: before striking a pleading/dismissing, the noncompliance must be shown to be willful and contumacious.
• JPMorgan Chase Bank, N.A. v New York State Dept. of Motor Vehs. — Supports the same guardrail: dismissal/striking is reserved for clearly willful noncompliance.
• Empire Enters. I.J.J.A., Inc. v Daimler Buses of N. Am., Inc. — Supplies the inference rule: willfulness may be inferred from repeated noncompliance over an extended period coupled with inadequate explanations.
• Cobo v Pennwalt Corp. Stokes Div. and Lotardo v Lotardo — Emphasize appellate deference: absent improvident exercise, sanctions determinations should not be disturbed where conduct frustrates the CPLR’s purpose.
• Taglianetti v Bay Ridge Med. Imaging, P.C., Hongyan Sun v Lee, and Patrick v Lend Lease [US] Constr. LMB, Inc. — Applied as comparators to uphold dismissal where delays and noncompliance persist without adequate excuse, underscoring the Second Department’s readiness to affirm dismissal when the record shows prolonged inaction.

B. “Affidavit of merit” after delay: content requirements and expert competence

• King v Dobriner, Jedraszak v County of Westchester, and Stukas v Streiter — Establish that when a plaintiff is directed to produce an affidavit of merit (often in the failure-to-prosecute context), it must come from a medical expert competent to attest to the claim’s merit. The competency and sufficiency of the affidavit become gatekeeping tools for whether the case may proceed.
• Michel v Long Is. Jewish Med. Ctr., Hogan v Schwartz, and Smith v Tyras — Reiterate the elements the affidavit must support: (i) departure from accepted practice/standard of care and (ii) proximate causation.
• Navas v New York Hosp. Med. Ctr. of Queens and Gilmore v Mihail — Highlight causation’s indispensability: absent causation, a plaintiff fails to show potential merit.
• Sicoli v Sasson, Bollino v Hitzig, and Perez v Astoria Gen. Hosp. — Used to fault conclusory/speaking-in-generalities expert proof. The court invoked these cases to insist on record-based detail: an expert must link opinions to documented symptoms/clinical facts and explain why they should have led a reasonably competent provider to the relevant diagnosis.
• Samer v Desai and Postlethwaite v United Health Servs. Hosps., plus Noble v Kingsbrook Jewish Med. Ctr. — Govern cross-specialty testimony: an expert need not be a specialist, but must have sufficient skill, training, education, knowledge, or experience to make the opinion reliable.
• Lavi v NYU Hosps. Ctr., Romano v Stanley, Tsimbler v Fell, and Galluccio v Grossman — Supply the “foundation” requirement: when opining outside one’s specialty, the expert must lay a foundation showing familiarity with the applicable standards in the specialized area; otherwise the opinion lacks probative value.
• Siculan v Koukos (and again King v Dobriner) — Support the procedural ruling that the Supreme Court may decline to consider an expert affirmation offered for the first time in opposition where it was not the required timely affidavit of merit contemplated by the prior court order.

3.2 Legal Reasoning

A. Why dismissal under CPLR 3126 was affirmed

The court treated dismissal as the culmination of a long pattern of noncompliance rather than a response to an isolated misstep. The record showed that after commencement in 2016 the plaintiff: failed to respond to multiple discovery demands (2017–2019), failed to execute medical authorizations, and failed to appear for deposition; and that by late 2022 “all discovery remained outstanding.” The plaintiff’s proffered explanation (guardian ad litem substitution/removal and later new counsel) did not address the period after March 2022, when new counsel appeared.

Applying the inference rule recognized in Empire Enters. I.J.J.A., Inc. v Daimler Buses of N. Am., Inc., the court concluded willful and contumacious conduct could be inferred from repeated failures over an extended time combined with inadequate excuses. It then applied the deference principle from Cobo v Pennwalt Corp. Stokes Div. and Lotardo v Lotardo to uphold the sanction as a provident exercise of discretion.

B. Why the “Rietschel affirmation” did not satisfy the court-ordered merits showing

The opinion effectively treats the court-ordered expert affidavit as a merits screen: to keep the action alive after years of delay, the plaintiff had to present competent, nonconclusory expert proof establishing (1) what the standard of care required, (2) how defendants departed from it, and (3) how that departure proximately caused the claimed injuries.

The court found the affirmation deficient on each critical dimension:

• Record-based specificity: The expert asserted “obvious leukemia” but did not identify, by reference to medical records, what symptoms were present, why those symptoms were associated with acute myeloid leukemia, or why they should have suggested leukemia to a reasonably competent physician. This mirrors the anti-conclusory principles invoked through Sicoli v Sasson, Bollino v Hitzig, and Perez v Astoria Gen. Hosp..
• Standard of care articulation: The affirmation did not set out the applicable standard of care (what a reasonably prudent provider should have done, and when), leaving the court without a concrete benchmark against which to measure “departure.”
• Proximate causation: The affirmation did not explain how any delay or deviation caused the plaintiff’s injuries—an omission the court treated as fatal under Navas v New York Hosp. Med. Ctr. of Queens and Gilmore v Mihail, because causation is an essential element of malpractice and thus of “potential merit.”

C. Cross-specialty competency: why the affirmation was non-probative as to Solovey

A distinct holding concerns expert qualifications. The court accepted the general principle that an expert need not share the defendant’s specialty, but insisted—consistent with Lavi v NYU Hosps. Ctr. and Romano v Stanley— that where an expert strays beyond their specialty, they must lay a foundation demonstrating familiarity with the relevant standard of care.

Because the oncologist did not claim training or experience in general dentistry or dental pre-operative testing, and did not explain how she became familiar with dental standards, the affirmation lacked probative value against Solovey. This is an important practical point: even an otherwise credentialed physician-expert can be disqualified (for purposes of establishing merit) if the affirmation does not explain why the expert is reliable on that discrete topic.

D. Timing and procedural discipline: late expert proof cannot cure the ordered showing

The court also endorsed the Supreme Court’s decision not to consider an affirmation submitted for the first time in opposition. Citing King v Dobriner and Siculan v Koukos, the opinion reflects a procedural discipline: where the court has ordered a particular merits affidavit within a defined period (and warned of dismissal), parties cannot typically avoid the consequences by offering a new expert submission only after the dismissal motion is made.

3.3 Impact

The decision’s likely impact is less about creating a new doctrine and more about sharpening enforcement of existing ones in the failure-to-prosecute/discovery-sanctions context:

• Affidavit-of-merit orders have teeth: When a court conditions continuation of a long-delayed malpractice case on a competent affidavit showing “potential merit,” a conclusory or poorly founded expert submission can be treated as noncompliance and support dismissal.
• Causation must be addressed early and explicitly: The case underscores that even at the “merit showing” stage, causation is not optional; an expert must connect the alleged departure to the injury in an intelligible, non-speculative way.
• Cross-specialty opinions require an express foundation: Litigants should expect courts to scrutinize whether the affidavit itself explains the expert’s familiarity with the relevant standard of care when the defendant’s practice area differs (here, oncology versus general dentistry).
• Appellate deference to sanctions remains strong: Once the record supports an inference of willful and contumacious noncompliance, the Second Department is likely to affirm dismissal absent a clear abuse of discretion.

4. Complex Concepts Simplified

• CPLR 3126: A New York rule allowing courts to penalize parties for disclosure (discovery) misconduct. Penalties range from issue preclusion to striking pleadings or dismissing the case.
• Willful and contumacious: Legal shorthand for intentional or stubbornly disobedient noncompliance. Courts may infer it from repeated failures over time plus weak or no explanations.
• Affidavit/affirmation of merit: A sworn expert statement ordered by the court to show the malpractice claim is potentially valid—especially when a case has stalled and dismissal for failure to prosecute is at issue.
• Standard of care: What reasonably competent medical (or dental) professionals would do under similar circumstances. A malpractice claim typically requires identifying this standard and explaining how it was breached.
• Departure (deviation): A failure to meet the standard of care.
• Proximate cause: The causal link between the departure and the injury. Even if care was substandard, the plaintiff must show that the substandard care actually caused harm.
• Foundation for expert opinion: The explanation within the expert’s submission showing why the expert is qualified and why the opinion is reliable—especially when the expert speaks outside their specialty.
• Probative value: The ability of evidence to prove something important. If an expert lacks foundation or relevant expertise, the opinion may be treated as having little to no probative value.

5. Conclusion

Romanova v Glatzer affirms that CPLR 3126 dismissal is an available—and sustainable—remedy where a plaintiff’s prolonged discovery failures support an inference of willful and contumacious conduct, and where the plaintiff does not satisfy a court-ordered requirement to produce a competent, nonconclusory expert affirmation demonstrating a meritorious malpractice claim.

The opinion’s broader significance lies in its insistence on rigor at the “merits affirmation” stage: an expert must anchor opinions in the medical record, articulate the standard of care, explain departures, and address causation. Additionally, when an expert opines outside their specialty, the affirmation must expressly lay a foundation demonstrating familiarity with the relevant standards—otherwise, the submission may be deemed non-probative and insufficient to keep the case alive.