Grossman v. Long Island College Hospital

206 A.D.2d 978, 616 N.Y.S.2d 290, 1994 N.Y. App. Div. LEXIS 7706

Opinion

Order insofar as appealed from unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting plaintiff’s motion to preclude defendant from testifying at trial concerning its preventive maintenance inspection procedure. There is no proof that defendant willfully or contumaciously refused to comply with a prior order directing defendant to supply a "complete description” of that procedure, and thus it was an improvident exercise of discretion to grant the motion to preclude (see, Donner v 50 Tom Corp., 99 AD2d 504; Town of E. Greenbush v Ashland Chem. Co., 99 AD2d 604). " '[T]he fact that a party is dissatisfied with the [discovery responses] proffered by another party is an insufficient basis upon which to conclude that the party willfully and contumaciously failed to comply with a court order compelling disclosure’ ” (Automatic Mail Serv. v Xerox Corp., 156 AD2d 623, 624, quoting E.K. Constr. Co. v Town of N. Hempstead, 144 AD2d 427). (Appeal from Order of Supreme Court, Kings County, Held, J.—Discovery.) Present—Pine, J. P., Law-ton, Wesley, Doerr and Boehm, JJ.