NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
October 13, 2009
VICTOR PEREZ, PLAINTIFF-RESPONDENT,
PEDRO A. VASQUEZ, ET AL., DEFENDANTS-APPELLANTS.
Order, Supreme Court, New York County (Paul Wooten, J.), entered September 10, 2008, which granted plaintiff's motion to strike defendants' answer and proceed to trial on damages only, unanimously modified, on the law and the facts and in the exercise of discretion, the answer reinstated, defendant Frank Livery Service precluded from offering any evidence at plenary trial unless it produces a witness for deposition within 60 days of the date of this order, and pays the entire costs of this deposition, and otherwise affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Saxe, J.P., Nardelli, Buckley, Acosta, Freedman, JJ.
The court's prior orders provided preclusion as the remedy for failure to comply with disclosure (see Anderson v RC Dolner, Inc., 43 AD3d 837 ). Under the facts of this case, we find conditional preclusion of only Frank Livery Service's case to be a more appropriate sanction (see Magee v City of New York, 242 AD2d 239 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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