Gorelik v. Luna Park Village, Inc.

201 A.D.2d 435, 609 N.Y.S.2d 775, 1994 N.Y. App. Div. LEXIS 1616

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1994
• Status: Published

Opinion

Order, Supreme Court, Kings County (Irving Aronin, J.), entered on or about January 9, 1992, which granted defendant’s motion for an order of preclusion only to the extent of directing that, after a "diligent search” for the name and address of a non-party "eye doctor”, plaintiff submit an affidavit either identifying the doctor or stating that the name and address could not be determined, unanimously affirmed, with costs.

It was not an abuse of discretion for the court to conclude that there was no willful misconduct justifying the drastic sanction of preclusion (see, e.g., Balsam v Nicolosi Bldg. Co., 36 AD2d 533, 534), particularly given the lack of record evidence to support defendant’s speculation that the records of the unidentified ophthalmologist will show plaintiff infant’s hydrocephalus condition to be preexisting.

We have considered the remaining arguments, and find them to be without merit. Concur — Rosenberger, J. P., Ross, Asch, Rubin and Williams, JJ.